:« 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 


i . 


A  TREATISE 


ON 


THE  PRINCIPLES  OF  THE  LAW 


OF 


MARINE   INSURANCES 


IN  TWO  PARTS: 

r._ON  THE  CONTRACT  ITSELF,  BETWEEN  THE  ASSURED  AND 
THE  ASSURER. 

0— OF  THE  CAUSES  WHICH  VACATE  THAT  CONTRACT. 

C— IN  WHAT  CASES  THE  ASSURED  IS  ENTITLED  TO  RECOVER 

BACK  THE  CONSIDERATION  PAID  BY  HIM1 
3.— AND,  LASTLY,  WHAT  IS  THE   REMEDY,  PROVIDED  BY  THE 

LAW,  FOR  EITHER  PARTY  AGAINST  THE  OTHER. 


By   FRANCIS  HILDYARD,   M.  A, 

OF  THE  INNER  TEMPLE,   ESa-j   B AHHISTER-AT-LA W. 


FROM  THE  LONDON  EDITION. 


HARRISBURG,    Pa.: 
PUBLISHED  BY  L  G.  M'KINLEY  &  J.  M.  G.  LESCURE. 

NORTH    THIRD    STREET. 

1847. 


mi 


H  A  R  R I  S  B  U  R  G  ,    PA.: 

PRINTED    ON    m'kINLF.Y    AND    LESCURe's 
STEAM    I'OWEU-I'TlESSEa. 


V 


PREFACE. 


I  Bi:a  to  oiTer  this  'f  realise  to  the  attention  of  the  Profession,  of  wiiich  1  am 
a  Member,  as  well  as  to  that  of  Underwriters  and  Mercantile  Men  :  with  an 
earnest  desire,  on  my  part,  that,  on  trial,  it  may  be  found  capable  of  supplying 
the  respective  wants  of  both. 

FRANCIS  HILDYARD. 

Innek  Temple,  October,  1846. 


74BS5? 


I.MRODUCTION. 


•'Policy,"  is  the  name  given  to  the  instrument  by  which  the  contract  is 
made  between  the  Assurer  and  the  Assured  ;  and  it  is  not  signed  by  both  parties, 
as  in  most  contracts,  but  only  by  the  Assurer,  who  is  on  that  account  denomi- 
nated an  underwriter,  (a) 

The  present  Treatise  is  confined  to  Policies  of  Assurance  on  the  Body  of  a 
Ship,  &c.,  and  on  the  Goods  and  Merchandises  laden  thereon,  and  which  are 
therefore  called  Marine  Policies. 

This  instnnnent,  though  not  ranking  with  specialty  contracts,  not  being  under 
seal,  has,  however,  for  many  centuries,  been  held  by  the  Courts  of  Justice  of 
this  country,  and  likewise  by  the  courts  of  foreign  countries,  a  most  sacred 
agreement  between  the  parties  to  the  instrument. 

This  "policy"  contains  the  seeds  of  all  the  principles  of  the  law  of  Marine 
Assurances,  which  have  by  the  lapse  of  so  many  years  grown  up  to  such  a 
great  height.  These  principles,  which  are  generally  considered  to  be  extremely 
abstract  and  difficult  in  the  comprehension  of  them,  which,  however,  will 
nevertheless  be  found  as  consistent  with  themselves,  as  much  so,  or  more  cer- 
tainly, perhaps,  than  tlie  principles  of  some  more  modern  laws,  are  to  be 
gathered,  if  at  all,  with  certainty  from  the  meanings  and  constructions  which 
the  Courts  of  Common  Law  have  from  very  early  times  placed  upon  every 
word,  I  woidd  say,  at  any  rate  upon  every  sentence  of  that  instrument  called 
a  Marine  Policy  of  Assurance.  In  such  a  research,  the  arguments  and  judg- 
ments of  some  of  the  most  acute  and  learned  Judges,  both  of  early  and  later 
times,  will  form  tlie  chief  ingredients  in  the  establishment  of  such  a  fabric,  nor 
will  the  opinions  of  learned  writers,  both  British  and  foreign,  be  found  insuffi- 
cient in  affording  great  additional  light  upon  this  ancient  subject  of  law. 

The  legal  meanings  and  constructions  which  have  been  put  on  the  words  and 
terms  used  in  this  instrument,  and  acquiesced  in  through  a  long  series  of  years, 
and  judicial  decisions,  will  supply  the  matter,  and  Ibrm  the  subject  of  this 
Treatise.  Tlie  Treatise  consists  of  two  parts.  In  the  first  part  it  has  been 
my  endeavour  to  get  the  contract  of  the  parties  from  the  words  and  terms  used 
in  the  policy,  and  that  would  have  been  sufficient  for  our  purpose,  if  a  clear 
understanding  of  the  contract  of  the  parties  from  the  words  and  terms  used  was 
all  that  was  required.  Unfortunately,  however,  in  the  dealings  in  the  world 
and  among  mercantile  men,  especially  with  respect  to  this  particular  contract, 
which  requires  more  ^'•bonafuhs^''  than  any  other,  it  is  not  only  the  real  con- 
tract that  is  enougli  to  protect  jiarties  entering  into  this  agreement,  which  is 
intended  for  tlie  encouragement  and  protection  of  persons  who  risk  not  only 
their  profits  but  their  property  upon  an  clement  the  vicissitudes  attending  which 
are  so  well  known.  Besides  the  contract  they  enter  into,  there  are  many  other 
considerations  to  be  taken  into  the  account,  in  order  that  this  system  of  protec- 


(«)  Park  Ins.  p.  1,  8th  edit. 


INTRODUCTION. 


tion  should  not  be  abused.  Consequently  the  subject  of  the  principles  of  the 
law  of  Marine  Insurances  must  incliuh;  all  tliose  questions  so  well  known  to  the 
law  relative  to  the  voidness  or  avoidableness  of  this  contract  as  well  as  others. 
I,  therefore,  brieily  mention  that,  having  endeavoured,  by  ^oin<r  through  the 
policy  sentence  by  sentence,  from  the  beginning  to  the  end,  in  the  first  part  of 
this  Treatise,  to  lay  down  what  I  believe  to  be  the  principles  of  law  strictly 
applying  to  the  contract  itself.  In  the  second  part  of  this  Work  it  was  neces- 
sary'to  treat  of  those  topics  which  have  a  reference  to  the  question,  "Whether 
or  not  every  thing  has  been  done  by  the  parties  wlio  have  entered  into  the  con- 
tract, to  entitle  each  to  the  legitimate  benefit  which  each  expected  to  enjoy  r" 
And,  if  not,  it  was  necessary  to  point  out  what  legal  steps  are  to  be  taken  by 
either  to  enforce  their  respective  rights  in  the  mode  laid  down  by  the  law. 

The  following  is  the  common  printed  form  of  a  Private  Underwriter's  policy 
on  ship  or  goods  : — (See  35  Geo.  3,  c.  63.) 

In  the  name  of  God,  Amen.  A.  B.  as  well  in  his  own  name,  as  for  and  in 
the  name  and  names  of  all  and  every  other  person  or  persons  to  whom  the 
same  doth,  may,  or  shall  appertain,  in  part  or  in  all,  doth  make  assurance,  and 
cause  himself,  and  them,  and  every  of  them  to  be  insured,  lost  or  not  lost,  at 

and  from 

upon  any  kind  of  goods  and  merchandises,  and  also  upon 
the  body,  tackle,  apparel,  ordnance,  munition,  artillery,  boat,  and  other  fur- 
niture, of  and  in  the  good  ship  or  vessel  called  the  whereof 

is  master,  under  God,  for  this  present  voyage,  E. 
F. ,  or  whosoever  else  shall  go  for  master  in  the  said  ship,  or  by  whatsoever 
other  name  or  names  the  same  ship,  or  the  master  thereof,  is  or  shall  be  named 
or  called  ;  beginning  the  adventure  upon  the  said  goods  and  merchandises  from 
the  loading  thereof  aboard  the  said  ship, 

upon  the  said  ship,  &c. 

and  so  shall  continue  and  endure, 
during  her  abode  there,  upon  the  said  ship,  &c.  And  farther,  until  the  said 
ship,°with  all  her  ordnance,  tackle,  apparel,  &c.,  and  goods  and  merchandises 
whatsoever,  shall  be  arrived  at 

upon  the  said  ship,  &c.,  until  she  hath  moored  at  anchor  twenty-four  hours  in 
good  safety  ;  and  upon  the  goods  and  merchandises,  until  the  same  be  there 
discharged  and  safely  landed.  And  it  shall  be  lawful  for  the  said  ship,  &c.,  in 
this  voyage,  to  proceed  and  sail  to  and  touch  and  stay  at  any  ports  and  places 
whatsoever  without  prejudice  to  this  insurance, 

the  said  ship,  &c.,  goods  and  merchandises,  &c.,  for  so  much  as  concerns  die 
assureds  by  agreement  between  die  assureds  and  assurers  in  this  policy  are  and 
shall  be  valued  at  Touching  the  adventures 

and  perils  which  we  the  assurers  are  contented  to  bear,  and  do  take  upon  us  in 
this  voyage,  they  are  of  the  seas,  men-of-war,  fire,  enemies,  pirates,  rovers, 
thieves,  jettisons,  letters  of  mart  and  countermart,  surprisals,  takings  at  sea, 
arrests,  restraints,  and  detainments  of  all  kings,  princes,  and  people,  of  what 
nation,  condition,  or  quality  soever,  barratry  of  the  master  and  mariners,  and 
of  all  other  perils,  losses,  and  misfortunes,  that  have  or  shall  come  to  the  hurt, 
detriment,  or  damage  of  the  said  goods  and  merchandises  and  ship,  &c.,  or  any 
part  thereof.  And  in  any  case  of  any  loss  or  misfortune,  it  shall  be  lawful  to 
the  assureds,  their  factors,  servants  and  assigns,  to  sue,  labour,  and  travel  for, 
in  and  about  the  defence,  safeguard  and  recovery  of  the  said  goods  and  mer- 
chandise and  ship,  &c.,  or  any  part  thereof,  without  prejudice  to  this  insurance  ; 
to  the  charges  whereof  we  tlie  assurers  will  contribute  each  one  according  to 
the  rate  and  quantity  of  his  sum  herein  assured.  And  it  is  agreed  by  us  the 
insurers,  that  this  writing  or  policy  of  assurance  shall  be  of  as  much  force  and 


VI  INTRODUCTION. 

effect  as  the  surest  writing  or  policy  of  insurance  heretofore  made  in  Lombard 
Street,  or  in  tlie  Royal  Exchange,  or  elsewhere  in  London.  And  so  we  the 
assurers  are  contented,  and  do  hereby  promise  and  bind  ourselves,  each  one  for 
his  own  part,  our  heirs,  executors,  and  goods  to  the  assured,  their  executors, 
and  administrators,  and  assigns,  for  the  true  performance  of  the  premises,  con- 
fessing ourselves  paid  the  consideration  due  unto  us  for  this  assurance  by  the 
assured  at  and 

after  the  rate  of 

Li  TVitness  whereof  we  the  assurers  have  subscribed  our  names  and  sums 
assured  in  I^ondon. 

N.  B.  Corn,  fish,  salt,  fruit,  flour,  and  seed,  are  warranted  free  from  average, 
unless  general,  or  the  ship  be  stranded ;  sugar,  tobacco,  hemp,  flax,  hides  and 
skins,  are  warranted  free  from  average,  under  five  pounds  per  cent.  And  all 
other  goods,  also  the  ship  and  freight,  are  warranted  free  of  average  under  threes 
pounds  per  cent,  unless  general,  or  the  ship  be  stranded. 


CONTENTS. 


PAKT  THE  FIRST. 

SECTION  I. 
Of  the  Assured,  his  Broker,  or  Agent,  .  -  -  -  1 

SECTION  II. 
Lost  or  not  Lost,        -------         10 

SECTION  III. 
*•  At  and  From."'        -------         13 

SECTION  IV. 
Upon  any  kind  of  Goods  and  Merchandises,   -  -  -  -         14 

SECTION  Y. 

And  also  upon  the  Body.  Tackle,  apparel,  &c.,  of  the  "  Good"  Ship 

called,  &c.      Whereof is  Master,  &;c.,  -  -  -         79 

SECTION  YL 

Beginning  the  Adventure  upon  the  said  Goods,  &c.,     -  -  -       148 

SECTION  VII. 

It  shall  be  Lawful  for  the  Ship,  &c.,  to  Touch  and  Stay,  &c.,  -       208 

SECTION  VIII. 

"The  said  Ship,  &c.,  Goods,  (fee,  are  valued  at ,"         -  -       263 

SECTION  IX. 
Touching  the  Adventures,  and  Perils,  <fcc.,     -  -  -  -       267 

SECTION  X. 
Perils  of  the  Sea,  Fire,  &c.,  -  -  -  -  -       270 

SECTION  XI. 
Jettisons,      --------       285 


viii  CONTENTS. 

SECTION   XII. 

Men-of-War,  Enemies,  Pirates,  &c.,  -  -  -  "       286 

SECTION  XIII. 

Barratry  of  the  Master  and  Mariners,  -  -  -  -       322 

SECTION  XIV. 

All  other  Perils,  Losses,  and  Misfortunes,  that  have  or  shall  come,  &c.,     348 

SECTION  XV. 


Total  Losses  and  Abandonment, 
Averao-e  Losses  and  Adjustment, 


354 
434 


SECTION  XVL 
General  Average,       -------       491 

SECTION  XVIL 

The  Assurers,  Brokers,  &;c.,  -  -  -  -  -       528 


PART  THE  SECOND. 

SECTION   L 
Of  Fraud  in  Policies,  ..----       570 

SECTION  n. 
Of  Illegal  Voyages,  ..----       630 

SECTION  IIL 

Of  Non-compliance  with  W^arranties,  .  -  -  -       662 

SECTION   IV. 
Of  return  of  Premium,  _-----       750 

SECTION  V. 
Of  Re-Assurance  and  Double  Assurance,        -  -  -  -       772 

SECTION   VI. 

Of  The  Proceedings  in  the  Action,     -----  -       783 


ADDENDA. 

(Case  of  Redmond  v.  Smith  and  Another,)     -  -  -  -       821 


INDEX  OF  CASES  CITED. 


Pages  referred  to  are  those  between  brackets,  thus  [     ] 


Page 
Abel  V.  Potts,  433 

Acey  V.  Fernie,  568 

Adams  v.  Sanders,  488 

Aguilar  v,  Rodgers,  755 

Airy  v.  Bland,  547 

Albretch  v.  Sussman,  2 

Allen  V.  Sugrue,  413,  818 

Allwood  V.  Henckell,  431 

Alridge  v.  Bell,  433 

Amery  v.  Rogers,  441,  805 

Andrews  v.  Palsgrave,  797 

Anderson  v.  Royal  Exchange,       359, 

432,  438 

V.  Wallis,       359,  407,  437 

V.  Pitcher,  697 

Andree  v.  Fletcher,  774 

Angerstein  v.  Bell,  158 

Annan  V.  Woodman,  110 

Anon.   cor.   Chambre,  J.,   York 

Sum.  Assizes,  546 

Anthon  v.  Fisher,  300 

Arcangelo  v.  Thompson,  302,  344 
Assievedo  v.  Cambridge,  26,  292,  295 
Atkinson  v.  Abbott,  600 

Atty  V.  Lindo,  165 

Audley  v.  Duff,  756 


B. 


Backhouse  v.  Ripley,  19,  509 

Bainbridge  v.  Neilson,  388 

Barber  v.  Fletcher,  612 

Barclay  v.  Cousins,  40 

V.  Stirling,  218,  237,  426 

Baring  v.  Royal  Exchange,  728 
V.  Christie,  713 

V.  Cleggett,  713 

V.  Harkle,  459 


Page 
Barker  v.  Blakes,  408,  417,  432 

Barlow  v.  M'Intosh,  648 

Barras  v.  London  Assurance,  178 


Barrow  v.  Bell, 
Barzillay  v.  Lewis, 
Bartlett  v.  Pentland, 
Bean  v.  Stupart, 
Beatson  v.  Haworth, 
Bell  V.  Gilson, 

V.  Broomfield, 

V.  Carstairs, 

V.  Hobson, 

V.  Humphries, 

V.  Jansen, 

■ V.  Potts, 

V.  Reid, 

Bennet  v.  Moita, 
Benson  v.  Chapman, 
Bernardi  v.  Motteux, 
Berens  v.  Rucker, 
Bermon  v.  Woodbridge, 
Berthon  v.  Loughman, 
Bichoff  V.  Agar, 
Bilby  V.  Lumby, 
Bird  V.  Appleton, 

V.  Astock, 

Birkley  v.  Presgrave,   499, 

Bishop  V.  Pentland, 
Bize  V.  Dickason, 
V.  Fletcher, 


459 
713 

560 
665 
240,  242 
9 
718 
718 
194 
9 
4 
2,  287 
634 
115 
394,  439 
712 
298 
767 
579 
312 
485 
635,  725 
497 
501,  503, 
527 
285,  461 
553 
608 

Blaapot  V.  Da  Costa,  490 

Blackett  v.  Royal  Exchange,  83,  449, 

475,  513 
Blackburne  v.  Thompson,  646 

Blackhurstv.  Cockell,  10,  663 

Blackenhagen   v.   London   Assu- 
rance, 417 
Blyth  V.  Shepherd,                 285,  302 


TABLE    OF    CASES. 


Boehm  v.  Bell, 
Bold  V.  Rotherhara, 
Bond  V.  Gonzales, 

V.  Hunter, 

V.  Nutt, 

Bondrett  v.  Hentigg, 
Bolton  V.  Gladstone, 
Boulton  V.  Dobree, 
Bowring  v.  Elmsie, 
Boyd  V.  Dubois, 
Brandon  v.  Nesbitt, 
Bragg  V.  Anderson, 
Brewster  v.  Kitchell, 
Brine  v,  Featherstone, 
Bristow  V.  Towers, 
British  Assurance  v.  Magee, 
Bromley  v.  Heseltine, 
Brooks  V.  M'Donnell, 
Broclebank  v.  Sugrue, 
Brotherton  v.  Barber, 
Brough  V.  Whitmore, 
Brown  v.  Tayleur, 

V.  Vigne, 

Bryans  v.  Nix, 

Burnett  v.  Kensington, 

Bush  V.  Bell, 

Busk  V.  Royal  Exchange, 

Butler  V.  Allnutt, 

V.  Wildman,        285, 

C. 


Page 

54 

202 

198,  256 
403 

257,  672 
271 
739 
2 
477 
133 
653 
242 
656 
613 
653 
35 
643 

442,  490 
804 


91. 


110. 


349, 


392 
281 
181 

418 
805 
478 
648 
282 
661 
499 


(!aldwell  v.  Ball,  805 

Callendar  v.  Oelrichs,  541 

Calogan  v.  London  Assurance,        394 
Calvert  v.  Bovill,  741,  743 

Cambridge  v.  Anderton,        366,  412, 

438,  813 
632,  807 
178 
647,  661 
198,  257 
314 
538,  596 

Cantillon  v.  London  Assurance,      531 
Carter  v.  Boehm,  96,  586,  629 


Camden  v.  Anderson, 

V.  Cowley, 

Camelo  v.  Britten, 
Campbell  v.  Bordieu, 

V.  Innes, 

V.  Rickards, 


V.  Royal  Exchange, 

Carnithers  v.  Ciraham, 

V.  Sheddon, 

V.  Sydebotham, 

Gary  v.  King, 
Case  V.  Davidson, 
Casscrcs  v.  Bell, 


117, 


261 
534 
17 
351, 
459 
811 
420 
653 


Cazalet  v.  St.  Barbe, 

Chapman  v.  Eraser, 

V.  Walton, 


Chausand  v.  Angerstein, 
Cheminant  v.  Pearson, 
Chimney  v.  Blackburne, 
Chitty  V.  Selwyn, 
Christie  v.  Lewis, 
V.  Secretan, 


Christian  v.  Secretan, 

V.  Combe, 

Classon  v.  Simmard, 
Clay  V.  Harrison, 
Clifford  V.  Hunter, 
Cohen  v.  Han  nan, 
Colby  v.  Hunter, 
Cock  V.  Townson, 
Cocking  v.  Eraser, 


416, 


Cochrane  v.  Fisher, 
Cocksedge  v.  Fanshaw, 
Constable  v.  Noble, 
Conway  v.  Gray, 
Corlet  V.  Gordon, 
Cormack  v.  Gladstone, 
Cornibot  v.  Fowke, 
Covington  v.  Roberts, 
Courteen  v.  Touse, 
Cox  v.  May, 
Cowie  v.  Barber, 
Craufurd  v.  Hunter, 
Crowley  v.  Cohen, 
Cruikshank  v.  .Tanson, 
Cullen  V.  Butler, 
Camming  v.  Forrester, 
Curling  V.  Long, 

D. 

Da  Costa  V.  Firth, 
V.  Newnham, 

V.  Scandret, 

Dalglcish  v.  Hodgson, 
Dalzell  V.  Mair, 
Davidson  v.  Willasey, 
Davis  V.  Gildart, 
Davy  V.  Mdlbrd, 
Dawson  v.  Atty, 
Dean  V.  Dicker, 
De'C'osta  v.  Edmunds, 
Do  (Jar(!y  v.  ('laggoU, 
De'Gamind  v.  Tigou, 
D'Eguino  V.  Bewicke, 


Page 
402 
629 

539.  596 
583 

443,  451 
427 
176 
329 
108 
717 
808 
240 
70 
110 
644 
667 
244 

466,  468, 
479 
688 
104 
180 

313,  319 
540 
237 
576 

50.3,  514 
804 
523 
636 
32,  34,  56 
17,  25 
179 

276,  348 
555 
159 


22,  387 

433,  517, 

523 

577,  627 

741 

547 

169 

776 

473 

717 

291 

20,  504,  512 

702 

548 

703 


TABLE    OF    CASES. 


XI 


De  Garron  v.  Galbraith, 
De  Hahn  v.  Hartley, 
Delanej'^  v.  Sloddart, 
Depaiba  v.  Liuilow. 
De'Silvale  v.  Kendal, 
De'Symonds  v.  Shedden, 
Devaux  v.  J'Anson,        173, 

V.  Salvador, 

V.  Steele, 

Dick  V.  Allen, 
Dickson  V.  Lodge, 

Dixon  V.  Reid,  326, 

—  V.  Sadler,     115,  116, 


Dobson  V.  Bolton, 

V.  Wilson, 

Donaldson  v,  Thompson, 
Douglas  V.  Anderson, 

V.  Scougall, 

V.  Stewart, 

Doyle  V.  Dallas,     407,  409, 
V.  Douglas, 

V.  Powell, 

DriscoU  V.  Bovill, 

V.  Pasmore, 

Dunlop  V.  Gill, 
Durrell  v.  Bedesley, 
Dyson  v.  Rowcroft, 

E. 

Early  v.  Bowman, 
Earle  v.  Rowcroft, 

V.  Harris, 

Eden  v.  Poole, 

V.  Parkinson,  96, 

Edwards  v.  Footner, 
Edmunds  v.  Groves, 
Edgar  v.  Bumstead, 
V.  Fowler, 

Elliot  V.  Wilson, 
Elton  V.  Larkins, 

V.  Brogden, 

Elkin  V.  Janson, 
Enderby  v.  Fletcher, 
Everard  v.  HoUingworth, 
Evereth  v.  Smith, 

v.  Bell, 

Eyre  v.  Glover, 


Falkner  v.  Case, 

V.  Ritchie, 

Farmer  v.  Legg, 


Page 

483 

668 

253,  533 

28 

74 

193 

350,  809 

93,  275 

53,  67 

441 

9,  805 

379,  408 

124,  334 

458 

521 

710 

788 

106,  136 

788 

439,  787 

787 

418 

235 

613 

636 

539 

469 


800 

331,  341 

682 

89 

123,  705 

718 

798 

551 

552 

237 

579 

249 

617 

258 

756 

388 

797 

14 


535 

379,  388 

120 


Farquharson  v.  Hunter, 
F'eise  v.  Aguilar, 

v.  Parkinson, 

Fcniaiidos  v.  Dacosta, 
Fisher  v.  Ogle, 
Fitzgerald  v.  Pole, 
Fitzlierliert  v.  Mather, 
Fisk  V.  Masterman, 
Fillis  V.  Brutton, 
Fletcher  v.  Poole, 
Flindt  v.  Waters, 
Flinn  v.  Headlani, 
Flint  v.  Fleniyng, 
V.  Mesurier, 


Young, 


Flower  v. 
Foley  V.  Moline, 
Forbes  v.  Aspinall, 

v.  Cowie, 

v.  Wilson, 

Forshaw  v.  Chabert, 
Fort  v.  Lee, 
Forster  v.  Christie, 
Foster  v.  Steele, 
Fox  v.  Black, 
Foy  V.  Bell, 
Fowke  V.  Pinsake, 
Fragano  v.  Long, 
France  v.  Kirwan, 
Freeman  v.  Taylor, 


Page 

217 

644 

629 

574 

739,  743 

28,  405 

614,  621 

757 

583 

89,  93 

2 

602 

171,  175 

40 

806 

579 

161,  168,  174 

166 

109 

110 

579 

249,  417 


106 
235 

547 

546 

69 

697 

260 

V,  East  India  Company,  379 

652 

9 

579 

404 


Freeland  v.  Walker, 

French  v.  Backhouse, 

Friese  v.  Woodhouse, 

Furneaux  v.  Bradley, 

Furtado  v.  Rogers,     2,  287,  655,  700 


G. 

Gale  V.  Machell, 
Gairdner  v.  Senhouse, 
Gamba  v.  Mesurier, 
Gammon  v.  Beverly, 
Gardiner  v.  Coleman, 

V.  Salvador, 

Garrels  v.  Kensington, 
Gernon  v.  Royal  Exchange, 
Geyer  v.  Aguilar, 
Gibson  v.  Hunter, 


Gill  V. 
Gist  V. 


v.  Mair, 
V.  Service, 
V.  Winter, 
Dunlop, 
Mason, 


Gladstone  v.  Clay, 


771 
241 
659 
486 
781 
409 
745 
433 
716 
104 
662 
662 
567 
636 
642 
194 


xu 


TABLE    OF    CASES. 


Page 
Gladstone  v.  King,  620 

Glennie  v.  Royal  Exchange,  359,  437 

554 

15 

298 

29 

776 

392 

553 

339 

198,  257 

269,  282 

647 


V.  Edmunds, 

Glover  V.  Black, 

V.  Cowie, 

Goddart  v.  Garret, 
Godling  V.  liondon  Assurance, 
Godsall,  V.  Boldero, 
Goldschmidt  v.  Lyon, 
Goldsmith  v.  Whitmore, 
Gordon  v.  Morley, 

V.  Rimington, 

V.  Vaughan, 

Goss  V.  Withers, 


Gould  V.  Oliver, 
Graham  v.  Barras, 


Grant  v. 

V. 

V. 

Green  v. 
V, 

V, 

V, 


V.  Russel, 

Delacoui', 

Parkinson, 

Paxton, 
,  Brown, 
,  Elmslie, 
,  Royal  Exchange, 


27,  287,  303,  305, 

361,  368,  385 

20,  504,  509,  512, 

798 

109,  110,  150, 

667,  689 

554 

209 

38,  43,  53 

209 

351 

270 

429 


Young, 
Gregory  v.  Christie, 
Gregson  v.  Gilbert, 
Grove  v.  Dubois, 
Guibert  v.  Readshaw, 
Crockett, 


Groning  v 


262,  308,  313 

18 

272,  809 

552 

251 

653 


Harrington  v.  Macmorris, 
Harrison  v.  Douglass, 
Harris  v.  Watson, 
Hartley  v.  Buggin, 
Hastelow  V.  Jackson, 
Havelock  v.  Lockwood. 

v.  Roekwood, 

Haywood  v.  Rogers, 
Hearne  v.  Edmunds, 
Hedburg  v.  Pearson, 
Henchman  v.  Offley, 
Henkle  v.  Royal  Exchange, 
Henrickson  v.  Margetson,  '> 

V.  Walker,       5 

Henry  v.  Staniforth, 
Hesselton  v.  Allnutt, 
Hey  man  v.  Parish, 
Hewitt  V.  Flexney, 
Hibbert  v.  Champion, 

V.  Halliday, 

V.  Martin, 

V.  Pigou, 

Secretan, 

London  Assurance, 
Blackiston, 
Glover, 
Malcomb, 
Richardson, 


Hill  V. 
Hills  V. 
Hodgson  V. 

V. 

V. 

V. 


H. 


Haddow  v.  Parry, 
Hadkinson  v.  Robertson, 
Hagedorn  v.  Bell, 

V.  Oliverson, 

v.  Reid, 

V.  Whitmore, 


Hahn  v.  Corbet, 
Hall  v,  Molinoux. 
Hamilton  v.  Mendez, 

Hammond  v.  Reid, 
Harding  v.  Carter, 
Hare  v.  Travis, 
Harford  v.  Maynard, 
Harman  v.  Kingston, 

V.  Vaux, 

Harratt  v.  Wise, 
Haughton  v.  Ewbank, 
Harrington  v.  Halkeld, 


805 
413 
646 

62 
644 
474 
271 

81 
361,  379,  389, 
391 
218 
529 
262 
304 
38,  263 
459 
315 
804 
252 


Hoffman  v.  Marshall, 
Hogg  V.  Goulney, 

V.  Horner, 

Hollinirworth  v.  Brodrick, 

V.  Broderick, 

Hooper  v.  Lusby, 
Horncastle  v.  Suart, 
Hoskins  v.  Pickersgill, 
Hore  V.  Whitmore, 
Housten  v.  Robertson, 
Horneyer  v.  Lushington, 

Hubbard  v.  Glover, 
Hucks  v.  Thornton, 
Hudson  v,  Harrison, 
Hughes  V.  Cornelius, 
Hull  V.  Cooper, 
Hunt  V.  Royal  Exchange, 


Hunter  v, 

V. 

V. 

V, 

Hurry  v. 


Leathley,       221 
Parker, 
Potts, 
Wright, 
Royal  Exchange, 


Page 
798 

663,  799 
503 

229,  259 
762 
301 
712 
134 
460 
473 
82 

641,  784 

43 

760 
262 
285,  344 
482 
485 
247 
110 
693 
68 
475 
432 
47 
270 
191,  576, 
581 
480 
481 
241,  764 
127 
788 
9 
164 
88 
670 
556 
158,  192, 
718 
613 
110,  364 
433 
66,  711 
176,  613 
358,  408, 
433,  437 
237,  536 
379,  807 
277 
764 
152,  454 


TABLE    OF    CASES. 


XUl 


I. 


Idle  V.  Royal  Exchange, 
Inglis  V.  Vaux, 
Irving  V.  Richardson, 

J. 

Jacob  V.  Jansen, 
Jarrat  v.  Ward, 
Jeffereys  v.  Legendra, 
Jenkins  v.  Mackensie, 
Jolly  V.  Walker, 
Jones  V.  Schmoll, 

V.  Pearce, 

Johnson  v.  Shippen, 

V.  Sheddon, 

Johnston  v.  Sutton, 


Kellner  v.  Le  Mesurier, 
Kelly  V.  Walton, 
Kensington  v.  Inglis, 
Kent  V.  Bird,  i 

Kenyon  v.  Berthon, 
Kewley  v.  Ryan, 
Kill  V.  HoUester, 
Kindersley  Appellants    ' 

Respondents, 
King  V.  Glover, 
Kingham  v.  Robins. 
Kingsford  v.  Marshall, 
Kingston  v.  Knobbs, 
Knight  V.  Cambridge, 
Knox  V.  Wood, 
Koster  v,  Reid, 

V.  Eason, 

Kruger  v.  Wilcox, 
Kulen  Kemp  v.  Vine, 


Lambert  v.  Liddard, 
Lanor  V.  Anderdon, 
Langhorne  v.  AUnutt, 

V.  Hardy, 

Laroche  v.  Oswin, 
Latevvard  v.  Curling, 
Levabre  v.  Walter,     } 

V.  AVilson,     5 

Law  V.  Hollingsworth, 
Lawrence  v.  Aberdein, 

V.  Sybothani, 

Leatham  v.  Terry, 


Page 
430 
219 
455 


636 
247 
270 
404 
244 
269 
789 
377 
452 
631 


658 

433 

648 

49 

667 

82 

784 

Chase 

729 

24,  47 

796 

464 

207.  685 

322,  334 

48 

352 

555 

781 

76,  809 


242 

684 
218,  259 
193 
237 
517 


Page 
Lee  V.  Beach,  105,  136 

Le  Cheminant  v.  Pearson,  442 

Lecras  v.  Hughes,  18,  51,  440 


Leigh  V.  Mather, 
Lemecke  v.  Vaughan, 
Le  Mesurier  v.  Vaughan, 
Le  Pypre  v.  Farr, 
Lethulier's  Case, 
Lever  v.  Fletcher, 
Lewen  v.  Swasso, 
Lewis  V,  Rucker, 

V.  Cormac, 

Lilly  V.  Ewer, 
liivie  V.  Janson, 
Long  V.  Allen, 

Douglas, 


Lockyer  v.  Offley, 
Loraine  v.  Thomlinson, 
Lothian  v.  Henderson, 
Lowry  v.  Bourdieu, 
Lubbock  V.  Potts, 

V.  Rowcroft, 

Lucena  v.  Craufurd, 
Lucey  v.  Ingram, 
Lundie  v.  Robertson, 
Lynch  v.  Hamilton, 
V.  Dunsford, 

M. 


178 
81 
646 
29 
197 
639 
336,  342,  784 
37,  263,  440 
652 
698 
271,  443,  449 
771 
788 
153,  328 
765 
664,  738 
72,  761 
298,  659,  764 
417 
7,  25,  52,  66 
115 
800 
580 
580 


516, 


245, 


225 

115 

276 
258 
423 


Maanss  v.  Henderson, 
Mann  v.  Forrester, 
Mallony  v.  Barber, 
Macdougal  v.  Royal  Exc 
Macdowall  v.  Eraser, 
Macarthy  v.  Abel, 
M'Andrews  v.  Bell, 

V.  Vaughan, 

Mackenzie  v.  Shedden, 

V.  Duff, 

Maeburn  v.  Leckie, 
Manning  v.  Newnham, 

V.  Irving, 

Mansfield  v.  Maitland, 
March,  Earl  of  v.  Pigot, 
Marsden  v.  Reid, 
Marsh  v.  Robinson, 
Martin  v.  Crockat, 
V.  Sitwell, 


Mason  v.  Scurray, 

V.  Simeon, 

M' Andrew  v.  Bell, 
Mathic  v.  Potts, 
M'Intosh  V.  Marshall, 


535 
535 

538 

hange,   458 
610 

391,  424 
583 

416,  471 
164 
763 
379 
406 
813 
74 
123 

242,  606 
807 
433 
751 

465,  472 
547 
804 

152,  302 
584 


XIV 


TABLE    OF    CASES. 


M'Intosh  V.  Slade, 
M'lver  V.  Henderson, 
M' Masters  v.  Shoolbred, 
May  V.  Christie, 
Meilish  V.  Allnutt, 
V.  Andrews, 

Meager  v.  Smith, 
Mead  v.  Davison, 
Meretony  v.  Dunlop, 
Metcalf  V.  Parry, 
Meyer  v.  Gregson, 
Meyne  v.  Walter, 
Middlewood  v.  Blakes, 
Mills  V.  Roebuck, 


Page 

115 

388 

405 

487 

193,  797 

221,  243,  365, 

412 

800 

11,  572 

154 

243 

770 

601 

262 

97 


Milles  V.  Fletcher,  113,  374,  401,  403 
Milward  v.  Hibbert, 
Minett  v.  Anderson, 

V.  Forrester, 

Mitchell  V.  Edie, 

Moir  V.  Royal  Exchange, 

Moody  V.  Surridge, 


Moore  v.  Taylor, 
Montgomery  v.  Richardson, 
v.  Eggington, 


505 
157 
553 
367 
683 
465 
219 
798 
160 
763 
427 
247,  330 


159. 


Mork  V.  Abel, 
Morrison  v.  Parsons, 
Moss  V.  Byrom, 
Motteux  V.  London  Assurance,       199, 

250,  784 
Mount  V.  Harrison,  430 

V.  Larkins,  177,  229,  260 

Mouse's  Case, 
Muller  V.  Hartshorne, 


497 

797 
365,  412 
106,  136 

248 
39 

509 


Mullett  y,  Sheddon, 
Munro  v.  Vandam, 
Murdock  v.  Potts, 
Murphy  v.  Bell, 
Myer  v.  Vande  Deyl, 

N. 

Naylor  v.  Taylor, 
Ncale  V.  Reid, 

V.  Erving. 

INelson  v.  Salvador, 
Nesbitt  v.  Lushington, 
Newby  V.  Read. 

V.  Reed, 

Newcasde  Insurance  Company  v. 

Macmorrow,  663 

Noble  V.  Kennoway,  151,  203 

Nonnen  v.  Kcttlewell,  193 

Nutt  V.  Bourdieu,  336,  340 


317,  393 
^9 
803 
683 
303,  305,  475 
352 
775 


O. 

Page 

Oddy  V.  Bovill,  712 

Ogle  V.  Wrangham,  9 

Ohrly  V.  Dunbar,  788 

OHver  v.  Cowley,  107 

Oom  V.  Bruce,  759 

Oswell  V.  Vigne,  718 

Ougier  V.  Jennings,  205,  229 


Page  V.  Thompson,  313 

Palmer  v.  Blackburne,  456 

V.  Marshall,  8 

V.  Pratt,  18,  79 

Parfitt  V.  Thompson,  111 

Park  V.  Hammond,  538 

V.  Hebson,  170 

Parker  v.  Beasley,  555 

V.  Carter,  535 

V.  Potts,  106 

V.  Smith,  554 

Parkin  v.  Tunno,  417 

V.  Dick,  661 

Parkinson  v.  Collier,  260 

Parmeter  v.  Todhunter,  432,  433 

Parr  v.  Anderson,  245 

Parry  v.  Aberdein,  402 

Parsons  v.  Scott,  388 

Patrick  v.  Earaes,  161 

Paterson  v.  Powell,  762 

Patterson  v.  Ritchie,  392 

Pawson  V.  Watson,  602,  664 

V.  Barnevelf,  667 

Pelly  V.  Royal  Exchange,  85,  137,  197 
Petei-s  V.  Milligan,  525 

Phillips  V.  Barber,  277, 

V.  Headlam,  117, 

Phillipps  V.  Irving,         177,  226, 
Phyn  V.  Royal  Exchange, 
Pipon  V.  Cope, 
Piescall  v.  Allnutt, 
Pirie  v.  Anderson, 

V.  Steele, 

Pittigrew  v.  Pringle, 
Planehe  v.  Fletcher, 
Plantamour  v.  Staples, 
Phnnmerv.  Wildman. 
Poiugdestre  v.  Royal  Exchange, 
PolhiU  v.  Walter, 
Pollard  V.  Bell, 
I'ond  V.  King, 


Potts  V.  Bell, 
Power  V.  Butcher, 


351 
118 
260 
331 
132 
661 
806 
518 
686 
638 
148 
518 
517 
572 
719,  737 
28 
644 
549 


597, 
146, 


TABLE    OF    CASES. 


XV 


Power  V.  Whitmore, 
Powles  V.  Iiines, 
Price  V.  Boll, 

V.  Noble, 

Proctor  V.  Thorbourne, 
Puller  V.  Glover, 


Page 

519 

8,  36 

727 
519 
111 

74 


Racker  v.  Uolling!)ury, 
Raine  v.  Bell, 
Ranken  v.  Reeve, 
RatclifFe  v.  Shoolbred, 
Rawlinsou  v.  Jansen, 
Rayner  v.  Godmoml, 
Read  V.  Bonliani, 
Redman  v.  Wilson, 
Reid  V.  Darby, 

V.  Derby, 

Reyner  v.  Hall, 
Rich  V.  Parker, 
Richardson  v.  Anderson, 

V.  London  Ass 

V.  Nourse, 

Rickard.s  v.  Mnrdock, 
Rickinan  v.  Carstairs, 
Ridsdale  v.  Newnham, 
Ritcliic  V.  Bousfield, 
Roebuck  v.  Hamerton, 
Roberts  v,  Fonnerau, 
Robertson  v.  Carruthers, 
Clarke, 
Ewer, 
Hamilton, 
Majoribanks, 
French, 
Gleadow, 
Morris, 
Maylor, 
Davis, 


Robinson 


Rogers  V, 

V 

Rohl  V.  Parr, 
Roscow  V.  Corson, 
Ross  V.  Hunter, 

V.  Thwaites, 

Rotcli  V.  Edie, 

Roulli  V.  Thompson,  57.  62, 

Rouxv.  Salvador,  149,  353,  355,  431, 

457 
Royal  Exchange  v.  Idle,  379 

259 


627 
236 
241 
581 
647 
460 

433,  818 
271 
806 
377 
486 
716 
481 
226 
525 
539,  583,  596 
195 

110,  684 
115 
762 
573 
379 

379,  413 

90,  309 

71 

610 

805 

9 

648 

482 

775 

276 

327 

330 

509 

310 

761 


Rucker  v.  Allnutt, 

V.  Palsgrave, 

Russel  v.  Bangley, 

v.  Boheme, 

Rutledge  v.  Barrel, 


797 

534,  557,  558 

809 

667 


S. 

Salisl)ury  v.  Townson, 
Saloucci  V.  Johnson,       307, 

V.  Woodmas, 

Salvador  v.  Hopkins, 
Samuel  v.  Royal  Exchange, 
Saville  v.  Campion, 
Schroeder  v.  Vaux, 
Scott  V.  BourdUlon, 

v.  Irving, 

v.  Thompson, 

Sea  Ins.  Comp.  of  Scotland 

Gavin, 
Senat  v.  Porter, 
Sewel  V.  Royal  Exchange, 
Seamen  v.  Fonnerau, 
Seller  v.  Work, 
Sharp  V.  Gladstone, 
Shaw  V.  Felton, 
Shee  V.  Clarkson, 
Sheppard  v.  Chewter, 
V.  Wright, 


Sheriff  V.  Potts, 

Shipton  V.  Thornton,    114, 

Shirley  v.  Wilkinson, 
Shoolbred  v.  Nutt, 
Sibbald  V.  Hill, 
Siffken  v.  Allnutt, 
V.  Lee, 


Simeon  v.  Bazett, 
Simonds  v.  Hodgson, 
Simond  v.  Boydell, 

and  Loder  v.  White, 

Smith  V.  Lascelles, 

V.  Plummer, 

V.  Robertson, 

V.  Scott, 

V.  Surridge,  110, 

V.  Calogan, 

V.  Readshaw, 

Smout  V.  Ilbery, 
Soares  v.  Thornton, 
Solly  V.  Whitmore, 
Sparkes  v.  Marshall, 
Sparrow  v.  Carruthers, 
Spencer  v.  France, 
Spitla  V.  Woodman, 
SpHdt  V.  Bowles, 
Stapleton  v.  Nowell, 
Stamma  v.  Brown, 
Steele  v.  Lacy, 
Stewart  v.  Aberdeen, 
V.  BeU, 


Page 
258 

707,  745 
715 

212,  214 

113,  1.58 
330 
652 
465 

557,  561 
249 

V. 

181 
808 

303,  635 
578 
538 
426 
156 
553 
486 
501 
236 
137,  141, 

144,  148 

612,  621 
133 
575 

646,  764 

719 

314 

16 

752 

527 

72,  536 

24 

392 

274 

176,  235 
538 
702 
572 
329 
259 
70 
151 
27 
193 
427 
796 
322 
718 

558,  564 
152 


XVI 


TABLE    OF    CASES. 


Stewart  v.  Dunlop, 
V.  Wilson, 


12,  33 


Page 
613 
111 
759 
8,  63 
236 
49 
152 
121 
149 
806 
647 
315 
710 
258 
709 
517 
24 
643 
707 


Stevenson  v.  Snow, 
Stirling  v.  Vaughan, 
Stitt  v.  Warden, 
Stockdale  v.  Dunlop, 
Strong  v.  Natally, 
Suart  V.  Powell, 
Sutherland  v.  Pratt, 
Sutton  V.  Buck, 
Ship,  The"  Acteon," 

"Adelaide," 

"Betsy," 

"Beaver," 

"Christopher," 

"Copenhagen," 

"Lady  Durham, 

"Emanuel," 

"FladOyen," 

"Fanny  and  Elmira,"  379 

"Good  Hope,'^ 

"Gratitudine," 

"Jane," 

"  Jonge  Tobias," 

"Louise  Charlotte  de 

Guldeneroni," 

"Maria," 

"Matchless," 

"Mercurius," 

"Mills  Frigate," 

"Neptunus," 

"Protector," 

"Ringende  Jacob," 

"Sarah  Christina," 

"Waterloo," 

"  Woodrop  Sims," 


652 
377,  521 

258 
643 


648 
747 
634 
643 
96 
315 
115 
643 
643 
258 
274 


T. 

Tabbs  V.  Bendleback, 
Tait  V.  Levy, 
Tanner  v.  Bennett, 
Tasker  v.  Scott, 

V.  Cunningham, 

V.  Wilmer, 

Tate  V.  Meek, 
Tatliam  v.  Hodgson, 
Taylor  v.  Curtis, 

v.  Wilson, 

v.  Woodness, 

'J'oed  V.  Martin, 
Thelluson  v.  Bewick, 

V.  Flctclier, 

.         V.  Sheddon, 


32,  266, 


705 
110 
409 
76 
232 
261 
330 
276 
502 
248 
701 
807 
441 
434 
811 


Thelluson  v.  Staples, 
Thellusson  v.  Fergusson, 
Thomas  v.  Foyle, 
Thompson  v.  Charnock, 

V 


Page 
681 

675,  677 
805 
784 
Royal  Exchange,  359, 
437 


—  v. 

—  v. 

—  V. 


Rowcroft, 

Taylor, 

AVhitmore, 


Tiernay  v.  Ethrington, 
Todd  V.  Ritchie, 

V.  Reid, 

Tongue  v.  Watts, 
Toulmin  v.  Anderson, 
Touteng  v.  Hubbard, 
Townson  v.  Guyon, 
Truscott  V.  Christie, 
Tunno  v.  Edwards, 
Turpin  v.  Bilton, 
Tyler  v.  Home, 
Tyrie  v.  Fletcher, 
Tyson  v.  Gurney, 

U. 

Usher  V.  Noble, 
Usparicha  v.  Noble, 


420 
163 
459 
200 
339 
560 
160 

344,  635 
312 
235 
170 
44,  490 
543 
628 
757 

300,  707 


454 
319 


Vallance  v.  Dewar, 
Vallejo  V.  Wheeler, 


231, 


Vandyck  v.  Hewitt, 

V.  Whitmore, 

Vanharthals  v.  Halhead, 
Violett  V.  Allnutt, 
Verdon  v.  Wilmot, 
Vezian  v.  Grant, 
Victoria  v.  Cleeve, 
Prescott, 


Visgar  v 


206, 

594 

322, 

330, 

334, 

339 

763 

646 

646 

218, 

237 

696 

671 

700 

313 

AV. 


Wake  v.  Atty, 
Walker  v.  Maitland, 
Wales  V.  Eames, 
AV^illace  v.  TcUUir, 
Warre  v.  Miller, 
Warwick  v.  Scott, 
Wharton  v.  De  la  Rive, 
Watson  V.  Clarke, 
Watt  V.  Morris, 
Way  V.  Modigliani, 


110. 


170,  179, 


106. 


617 
284 
157 
537 
259 
197 
762 
123 
106 
231 


TABLE    OF    CASES. 


XVU 


121, 
127, 


Webb  V.  Thomson, 
Webster  v.  Forster, 
Wedcrburn  v.  Bell, 
Weir  V.  Abordoin, 
Wells  V.  Williams, 

V.  Ilopwood, 

Weston  V.  Eames, 
Westbiiry  v.  Aberdein, 
Whitehead  v.  Vaughan, 
Whitiinffham  v.  Thornborough, 
Wilkie  V.  Geddes, 
Wilkinson  v.  Coverdale, 


Page 
696 
579 
752 
251 
320 
462 
610 
579 
535 
626 
107 
537 


Williams  v.  East  India  Company,  625 

V.  liOndon  Assurance,      523 

V.  Shee,  218,  259 

V.  Marshall,  693 

Williamson  v.  Innes,  170 


Wilson  V.  Ducket, 


627 


Page 
Wilson  V.  Foster,  405 

V.  Marry  at,  633 

V.  Millar,  379,  521 

V.  Royal  Exchange,     24,  407 

V.  Smith,  465,  493 

77 
255 
17,  71,  319 
808 
573,  704 
231 
808 
677 


Winter  v.  Haldimand, 
Wolfe  V.  Claggen, 
Wolff  V.  Horncastle,      4, 
Woodward  v.  Larkins, 
Woolmer  v.  Muilman, 
Woolridge  v.  Boydell, 
Wright  V.  Barnard, 
V.  Shiffner, 


Young  V.  Irving, 
V.  Turing, 


266 
397,  818 


Vol.  VII.— B 


THE  PRINCIPLES 


OF 


THE  LAW 


OF 


MARINE  INSURANCES. 


PART  I. 

SECTION  THE  FIRST. 


THE    ASSURED. 

A.  B.  "as  well  in  own  name  as  for  and  in  the  name  and  names  of  all 

and  every  otlier  person  or  persons  to  whom  the  same  doth,  may,  or  shall  apper- 
tain, in  part  or  in  all,  doth  make  assurance,  and  cause  and  them,  and  every 
of  them  to  be  insured."  The  policy,  it  will  be  seen,  in  the  commencement 
of  the  first  sentence  above  cited,  sets  out  by  declaring  on  tlie/oce  of  the  policy 
either  the  name  of  the  assured  himself,  or  the  name  and  firm  of  the  broker  or 
agent  employed  by  him  to  make  the  insurance,  and  the  name  or  names  of  all 
and  every  other  person  or  persons  to  whom  the  same  doth,  may,  or  shall 
appertain,  in  part  or  in  all,  doth  make  assurance  and  cause  and  them,  and 
every  of  them  to  be  insured.  And  the  first  question  that  is  necessary  to  be 
inquired  into  is  this,  "What  persons  are  by  the  law  of  tliis  country  considered 
as  capable  to  represent  the  character  of  the  assured  in  a  marine  policy  of  assu- 
rance?" To  this  question  the  answer  is,  that  all  persons  whatsoever  of  sane 
memory,  wherever  domiciled,  are  permitted  by  law  to  be  "^the  ^  ^.^  -i 
assured,  with  one  single  exception,  and  this  is,  in  respect  of  the  L 
disability  of  alien  enemies.  This  rule  of  law  (which  is  not  confined  to  this 
contract,  but  extends  equally  to  all  known  to  the  law)  is  founded  upon  grounds 
of  public  policy,  and  it  amounts,  in  fact,  to  saying  that  no  contract  between  a 
British  sichjec't  and  an  enemy  is  valid  bij  the  common  law,  and  such  a  con- 
tract is  as  much  prohibited  as  "if  it  had  lieen  expressly  forbidden  by  act  of  Par- 
liament ;  and  a  contract  of  this  description  is  incapable  of  being  enforced  in  a 
Court  of  Justice,  either  of  law  (a)  or  of  equity,  (6)  unless  the  alien  enemy 


(a)  Bell  V.  Potts,  8  T.  R.  548.     Furtado  v.  Rogers,  3  B.  &  P.  191.     And  see  post, 
in  this  treatise,  part  2,  sec.  2. 

(6)  Albretch  v.  Sussman,  2  Vcs.  &  B.  32-3. 


Z  THE    ASSURED. 

come  into  this  country  and  reside,  with  the  license  of  the  Lord  the  King. 
Boulton  and  another  v.  Dobree.  (c)  It  is  to  be  observed,  however,  that  the 
right  of  action  is  only  suspended  until  the  return  of  peace,  if  the  contract  were 
legal,  and  made  before  the  commencement  of  the  war.  And  it  has  therefore 
been  decided,  in  a  case  of  FUndt  v.  Waters^  [d)  that  a  British  agent  who  had 
made  a  policy  of  insurance  on  behalf  of  alien  enemies,  who  became  enemies 
after  the  loss  happened,  but  before  the  commencement  of  the  action,  was  enti- 
tled to  recover  against  an  underwriter,  who  had  only  pleaded  the  general  issue ; 
for  such  temporary  suspension,  during  the  war,  of  the  assured's  right  to  sue 
upon  a  contract,  legal  at  the  time,  and  liable  to  be  enforced  upon  the  return  of 
peace,  cannot  be  taken  advantage  of  under  a  plea  of  perpetual  bar,  there  being 
no  legal  disability  in  the  plaintiff  on  the  record  to  sue.  Lord  Ellenborough 
says,  "The  defence  of  an  alien  enemy  must  be  accommodated  to  the  nature 
of  the  transaction  out  of  which  it  arises ;  it  may  go  to  the  contract  itself  on 
which  the  plaintiff  sues,  and  operate  as  a  perpetual  bar;  as  the  objection  may, 
as  in  a  case  of  this  sort,  be  merely  personal  in  respect  to  the  capacity  of  the 
party  to  sue  upon  it.  Here  the  objection  is  taken  upon  the  general  issue, 
r  *q  1  which  is  a  plea  of  perpetual  bar,  and  if  found  against  the  plaintiff 
L  J  *would  have  concluded  him   for  ever :  so  that  should  peace  be 

established  to-morrow  between  the  two  countries,  and  the  Crown  should  not 
have  interfered  to  seize  the  debt,  yet  on  this  plea  of  bar  the  plaintiff  would 
have  been  for  ever  estopped  to  sue  for  his  debt.  But  here  the  objection  is  only 
of  a  temporary  nature  :  the  contract  itself  was  perfect  at  the  time  it  was  made  j 
the  trade  was  made  with  an  alien  friend ;  the  insurance,  the  loss  and  cause  of 
action,  had  arisen  before  the  assured  had  become  enemies.  When,  therefore, 
they  became  such  it  was  only  a  temporary  suspension  of  their  own  right  to  sue 
in  the  Courts  here  as  alien  enemies ;  but  that  objection  cannot  be  carried  fur- 
ther, nor  be  applied  to  the  plaintiff  as  their  trustee,  who  is  a  subject  of  the 
king ;  otherwise,  if  it  could  avail  upon  this  plea,  it  would  be  making  that  a 
perpetual,  which  is  in  its  nature  only  a  temporary  bar." 

Secondly,  under  this  head  it  is  necessary  to  refer  to  the  statute  28  Geo.  3, 
c.  56,  which  after  repealing  a  former  statute,  25  Geo.  3,  c.  44,  the  provisions 
of  which  were  thought  too  rigid,  enacts,  "That  it  shall  not  be  lawful  after  the 
passing  of  this  act  for  any  person  or  persons  to  make,  or  cause  to  be  made, 
any  policy  of  assurance  on  any  ship,  or  vessel,  or  upon  any  goods,  merchan- 
dises, effects,  or  other  property  whatsoever,  Avithout  first  inserting,  or  causing 
to  be  inserted,  the  name  or  names,  or  the  usual  style  and  firm  of  dealing  of 
one  or  more  of  the  persons  interested  in  such  assurance ;  or  without,  instead 
thereof,  first  inserting  the  name  or  names  of  the  usual  style  and  firm  of  dealing 
of  the  consignor  or  consignors,  consignee  or  consignees  of  the  goods  or  pro- 
perty so  to  be  insured ;  or  the  name  or  names  or  the  usual  style  and  firm  of 
dealing  of  the  person  or  persons  residing  in  Great  Britain  who  shall  receive 
the  order  for,  and  make  such  policy,  or  of  the  person  or  persons  who  shall 
give  the  order  or  directions  to  the  agent  or  agents  immediately  employed  to 
negotiate  or  make  such  policy."  The  statute  further  declares,  "tliat  every 
policy  made  or  underwrote  contrary  to  the  true  intent  and  meaning  of  this  act 
shall  be  null  and  void  to  all  intents  and  purposes." 

V      *A       ~\      *^'^  ^^^^  statute  it  has  been  decided  that  although  it  be  not  neces- 
L  -J  sary  to  specify  in  the  declaration  what  character  the  person  making 

the  insurance  bears,  namely — whedier  consignor  or  consignee,  &c. ;  yet  having 
averred  in  the  declaration,  that  they  answered  a  particular  description  men- 

(c)  2  Camp.  162.     See  the  subject  of  insuring  the /?roper/»/  of  an  enemy ,  treated  of  in 
Park  Ins.  8th  edit.  p.  522.  {d)  15  East,  260. 


THE    ASSURED.  3 

tioned  in  the  statute,  they  were  bound  to  prove  it.     Bell  v.  Janson.  (a)     As 
this  statute  28  Geo.  3,  recites  in  the  preamble,  "tliat  it  had  been  found  by 
experience  that  great  mischiefs  and  inconveniences  had  arisen  to  persons  inter- 
ested in  ships,  and  to  persons  using  commerce,  from  the  acts  of  25  Geo.  3,  c. 
44,  and  that  it  was  expedient  that  other  and  more  convenient  rules  should  be 
made  for  the  regulating  insurances  on  ships,  &c.,  than  those  contained  in  the 
said  statute,"  the  Court  of  Common  Pleas,  in  the  case  of  Wolff  and  others  v. 
Ilorncastle,  (6)  considered  themselves  bound  to  put  the  most  liberal  construc- 
tion on  the  statute  that  the  words  would  bear.      This  case  was  an  action  on  a 
policy  of  assurance  brought  by  the  plaintiffs,  by  their  names  and  firm  of  Messrs. 
Wolffs  and  Dorville,  "as  well  in  their  own  names  as  for  and  in  the  name  and 
names  of  all  and  every  other  person  or  persons  to  whom  the  same  did,  might, 
or  should  appertain  in  part  or  in  all."     The  defendant  underwrote  the  policy 
for  200/. :  there  was  a  total  loss.      "  The  first  count  of  the  declaration,  averred 
that  the  insurance  was  made  by  the  plaintiffs,  as  the  agents  of  one  Jockum 
Brink  Lund,  and  for  his  use  and  benefit^  and  the  plaintiffs,  at  the  time  of 
the  making  thereof,  were  persons  residing  in  Great  Britain,  and  did  make  the 
policy  as  such  agents,  and  the  style  and  firm  of  "Messrs.  Wolffs  and  Dorville," 
inserted  in  the  policy,  was  at  the  time  of  the  making  tliereof,  the  usual  style 
and  firm  of  the  firm  of  them  the  plaintiffs,  and  that  Jockum  Brink  Lund  was 
then  interested  in  the  goods  to  the  amount  insured.      The  verdict  was  found  for 
the  plaintiffs,  subject  to  the  opinion  of  the  Court  on  a  case.     Bidler,  J. — "It 
was  a  real  bonu  fide  transaction,  a  loss  has  happened,  and  tlie  underwriter  now 
chooses  to  say,  that  for  *want  of  a  strict  compliance  with  the  sta-  r      ^k       -, 
tute  28  Geo.  3,  he  shall  be  excused  from  paying  the  money.     If,  L        ^       J 
however,  the  defendant  can  bring  his  case  within  the  statute,  he  has  the  riorht 
to  do  so.     But  has  the  defendant  brought  his  case  within  the  meaning  of  the 
statute.^     Has  he  even  brought  it  within  the  words  of  the  statute.''     And  even 
if  he  brought  it  within  the  words  and  not  within  the  meaning,  I  sliould  be  clearly 
of  opinion   for  deciding  against  him ;  and,  in  so  doing,  I  should  follow  the 
directions  of  the  statute,  which  in  the  last  clause  enacts,  'that  every  policy 
or  policies  of  insurance  made  and  wrote  conti-ary  to  the  true  intent  and  mean- 
inp^  of  this  act,  shall  be  null  and  void."     Let  us  see,  then,  whether  the  plain- 
tiffs do,  or  do  not,  come  within  any  of  the  descriptions  of  persons  in  the  last 
statute.     These  descriptions  are  four — (1)  the  consignor :  (2)  the  consignee; 
(3)  the  person  receiving;  (4)  the  person  giving  the  order.     It  is  clear  that 
the  plaintiffs  are  not  the  consignors :  but  I  am  not  so  sure  that  they  are  not 
the  consignees.     It  is  true  that  the  goods  were  originally  consigned  to  another 
person,  but  the  case  must  be  considered  as  it  stood  at  different  times :  though 
the  Cudbear  Company  were  the  consignees  at  first,  it  does  not  folloAV  that 
they  continued  to  be  so. 

What  is  a  consignee?  A  person  residing  at  the  port  of  delivery,  to  whom 
the  goods  are  to  be  delivered  when  they  arrive  there.  Lund  does  not  trust  the 
Cudbear  Company  without  securing  himself:  he  therefore  sends  the  bill  of 
lading  to  the  plaintiffs,  who  are  his  general  agents,  in  order  that  he  may  be 
secure  of  being  paid  for  his  goods.  If  the  Cudbear  Company  had  received 
the  goods,  they  would  have  been  the  consignees,  but  they  refused  to  receive 
them  :  then  who  was  entided  to  receive  them  ?  to  whom  could  the  right  belong 
but  to  the  persons  who  had  the  bill  of  lading,  and  who  were  the  general  agents 
of  the  consignor.  From  the  moment  the  Cudbear  Company  refused  to  have 
any  thing  to  do  with  the  goods,  the  plaintiffs  became  the  consignees.  If  this 
be  so  there  is  no  objection  to  the  policy,  and  I  am  satisfied  I  do  not  carry  this 


(a)   I  M.  &  S.  201.  ((,)  1  B.  &  P.  316. 


4  THE    ASSURED. 

r  *o  -1  construction  too  far,  when  the  justice  of  the  case  is  *\vith  the 
L  J  phiintiffs.     But  there  are  two  other  characters  mentioned  in  the 

act.  The  next  is  the  person  who  receives  the  order  to  insure ;  let  us  see 
whether  these  plaintiffs  had  not  an  order  to  make  insurance.  The  goods  were 
originally  intended  for  the  Cudbear  Company,  but  they  were  sent  accompanied 
with  a  letter,  which  stated  in  the  clearest  terms,  that  Lund  intended  that  they 
should  be  insured.  The  Cudbear  Company  having  refused  to  take  the  goods, 
could  the  plaintiffs,  who  were  the  general  agents  of  Lund,  could  any  man  of 
sense  read  his  letter  and  doubt  of  his  intentions.^  In  giving  his  reasons,  he 
says,  that  the  season  is  so  far  advanced,  he  does  not  think  it  safe  to  send  the 
goods  without  their  being  insured.  The  plaintiffs  must  have  been  blind  if  tliey 
had  not  seen  it  was  his  intention  to  have  them  insured.  Then  what  Avas  his 
intention?  Why  that  they  should  be  insured.  It  is  agreed  that  a  general 
agent  has  a  right  to  exercise  his  discretion  for  the  benefit  of  his  principal :  he 
must  act  on  the  spur  of  the  occasion,  and  if  nothing  had  passed,  I  have  doubts 
whetlner  the  consignor  would  not  have  been  liable  to  pay  the  premium.  But 
the  plaintiffs  inform  the  consignor  of  their  having  made  the  insurance,  and  he 
highly  approves  their  acts,  which  brings  the  case  witliin  the  maxim  that  'omnis 
ratihabitio  retrotrahitur  mandato  priori  aequiparatur. '  I  am  clear  therefore, 
that  the  plaintiffs  were  the  persons  who  received  the  order  to  make  this  insu- 
rance witliin  the  description  of  the  act  of  Parliament.  But  there  is  still  another 
character  to  be  considered  :  the  statute  mentions  in  the  last  place,  the  person 
who  gives  the  order  to  make  the  insurance.  Now  in  my  opinion,  it  is  impos- 
sible to  state  a  case  that  comes  more  directly  within  the  act  of  Parliament  than 
this.  Wlio  were  the  persons  immediately  concerned,  who  immediately  em- 
ployed the  broker,  who  gave  the  immediate  order  for  insurance,  but  the  plain- 
tiffs.^ It  appearing  therefore  that  they  come  Avithin  the  words  of  the  act  of 
Parliament,  the  case  stands  clear  of  all  objections,  and  is  in  law,  conscience, 
and  justice  with  the  plaintiffs."  The  other  Judges,  Heath,  J.,  Rookc,  J., 
concurred.     Postea  to  the  plaintiffs. 

r-  s;7  ~\  *Ii^  ^^^^  case  of  Lucena  v.  Craufurd,  (a)  in  error  in  the  House 
■-  -'  of  Lords,  from  the  Court  of  King's  Bench,  the  action  was  on  a 

policy  of  assurance,  and  the  first  count  averred  that  tlie  king,  by  virtue  of  the 
powers  vested  in  him  by  35  Geo.  3,  c.  80,  had  issued  his  commission,  under 
the  Great  Seal,  directed  to  certain  commissioners,  naming  them  and  nominating 
them  commissioners  for  the  purposes  mentioned  in  that  act,  and  authorizing 
them  to  take  into  their  possession  ships  and  goods  belonging  to  subjects  of  the 
United  Provinces,  which  had  been  or  might  be  detained  in  or  brought  into  the 
ports  of  this  kingdom,  and  to  manage,  sell,  and  dispose  of  the  same  to  the  best 
advantage,  according  to  such  instruction  as  they  should  receive  from  the  king 
in  council,  liefore  any  declaration  of  war  against  the  United  Provinces,  one 
of  his  Majesty's  ships  took  several  Butch  East  Indiamen,  and  carried  them 
into  St.  Helena;  the  commissioners,  with  the  consent  of  the  Lords  of  the 
Treasury,  insured  them  "at  and  from  St.  Helena  to  London.^^  War  was 
soon  after  declared  against  the  United  Provinces,  and  the  ships  were  finally 
condemned  as  prize  to  his  Majesty,  "as  having  belonged,  when  taken,  to  the 
subjects  of  the  United  Provinces,  since  become  enemies."  Upon  a  loss  hap- 
pening, the  commissioners  declared  on  tlic  policy,  and  averred  the  interest  to 
be  in  the  king.  The  verdict  was  found  for  the  plaintiffs  below,  and  the  Lords, 
on  the  writ  of  error,  decided  that  the  action  well  lay. 

At  the  trial  the  Lord  Cliicf  .Justice  Ellenborough  directed  the  jury  that,  upon 
the  evidence,  the  plaintiffs  might  maintain  the  issue  as  to  tlie  second  count,  and 


(o)  1  Taunt.  325. 


THE    ASSURED.  5 

that  his  Majesty,  at  the  times  when  the  ships  and  goods  sailed  from  St.  Helena, 
and  when  the  policy  of  insurance  was  made,  and  from  thence  until,  &c. ,  at  the 
time  of  the  loss  of  the  Houghlcy  and  Surcheance,  had  an  insurahle  interest  in 
the  said  ships  and  goods  ;  and  further,  that  if  any  of  his  Majesty's  suhjects 
make  an  insurance  for  the  benefit  and  on  account  of  his  Majesty,  his  Majesty 
may  adopt  and  ratify  the  same  ',  and  that  the  insurance  *in  the  r  «o  -i 
second  count  was  adopted  by  his  Majesty.     And  the  jury  found  L  J 

their  verdict  for  the  plaintiffs  as  to  the  second  count,  with  £800  damages.  The 
same  doctrine  was  laid  down  in  the  case  of  Stirling  v.   Vaughan.  («) 

In  a  very  recent  case  in  the  Court  of  Exchequer,  of  Poivles  and  others  v. 
Innes^  (b)  a  question  was  discussed  and  settled  by  the  Court  (consisting  of  Lord 
jibinger,  C.  B.,  Parke,  B.,  and  Gnrncy,  B.,)  whether  an  assured,  who  assigns 
away  his  interest  in  a  ship  or  goods,  after  making  a  policy  of  insurance  upon 
them,  could  sue  upon  the  policy  j  and  it  was  held  by  the  Court  that  he  could 
sue  only  in  one  way,  viz  :  as  a  trustee  for  the  assignee,  in  a  case  where  the 
policy  is  handed  over  to  him,  upon  the  assignment.  Lord  Abinger  says  : — 
*'The  contract  of  insurance  was  originally  only  a  contract  of  wager;  since 
the  Legislature  has  adopted  it,  it  is  a  contract  of  indemnity  only,  and  nobody 
can  recover  who  is  not  really  interested.  The  policy  is  but  a  '  chose  in  action,' 
and  cannot  pass  merely  by  the  assignment  of  the  ship."  And  Parke,  B.,  says  : 
"If  the  policy  had  been  handed  over  with  the  bill  of  sale,  or  there  had  been 
an  order  to  the  brokers  to  hand  it  over,  the  case  would  be  different — then  the 
parties  misfht  sue  as  trustees  for  the  purchaser ;  but  we  cannot  infer  that,  no 
facts  being  stated  in  the  case  to  warrant  such  an  inference."  (c) 

In  the  case  of  Palmer  v.  Marshall,  (d)  Avhere  it  was  alleged  in  the  declara- 
tion that  the  plaintiff,  by  M'C4hie  and  Page  (his  agents  in  that  behalf,)  caused 
to  be  made  a  certain  policy  of  insurance,  it  was  held  by  the  Court  of  Common 
Pleas  that  it  was  necessary  for  the  plaintiff  to  prove  that  M'Ghie  and  Page 
were  his  agents.  Upon  this  act  it  has  also  been  held  that  it  is  not  necessary, 
where  a  policy  is  made  by  an  agent,  to  add  the  word  agent,  or  any  other  de- 
scription, to  his  name  in  the  policy  itself;  (e)  and  it  has  also  been  decided  that  a 
*policy  made  by  a  broker,  describing  himself  therein  as  agent,  has  j-  ^^^  -, 
sufficiently  complied  with  the  requisition  of  the  statute.     It  is  to  L  J 

be  presumed,  after  verdict,  that  the  plaintiff  fell  within  one  or  other  of  the  de- 
scriptions in  the  act.  (a)  And  Lord  Ellenborough  held  at  Nisi  Prius,  that  an 
allegation,  both  in  the  policy  and  the  declaration,  that  the  policy  was  made  for 
the  plaintiffs  by  the  firm  A.  B.  C,  was  satisfied  by  proof  that  it  was  made  by 
the  firm  A.  &;  B.,  there  being  two  firms  having  two  members  in  common, 
Dickson  v.  Lodge,  (b) 

Before  the  passing  both  of  25  Geo.  3,  and  28  Geo.  3,  it  was  decided  that 
the  husband  of  a  ship  had  no  right  to  insure  for  any  part-owner,  without  his 
particular  direction,  nor  for  all  the  owners  in  general,  without  their  general 
direction,  or  something  equivalent  to  it,  French  v.  Backhouse,  (c) 

But  it  has  recently  been  held  in  the  case  oi  Pobinson  and  another,  Assignee, 
ifC,  V.  Gleadow  and  others,  (d)  that  where  one  of  several  part-owners  of  a 

(a)  11  East,  623,  post.  (b)   11  M.  &  W.  10. 

(c)  See  Sutherland  v.  Pratt,  12  M.  &  W.  16,  SLmi  post,  sec.  iv, 

(d)  8  Bing.  82. 

(e)  De  Vignier  v.  Swanson,  B.  R.  Mich.  39  Geo.  3,  Park  Ins.  17. 

(a)  Bell  V.  Gilson,  1  B.  &  P.  345.     Mellish  v.  Bell,  15  East,  4. 

(b)  1  Stark.  226. 

(c)  5  Burr.  2727.  Bell  v.  Humphries,  2  Stark.  345.  Ogle  v.  Wrangham,  coram  Ken- 
yon,  sit.  Guild.  H.  T.  1790,  Abbott  on  Ship,  p.  92,  6th  edit. 

(d)  2  Scott,  250 ;  2  B.  N.  C.  156. 


b  LOST    OR   NOT   LOST. 

ship,  and  who  was  the  managing  owner,  without  any  express  authority  from 
the  others,  effected  a  joint  insurance  upon  the  entire  ship,  charging  the  premium 
and  commission  in  the  ship's  accounts,  which  were  open  to  the  inspection  of, 
and  were  actually  inspected  by,  the  other  owners,  and  not  objected  to,  the  jury 
were  warranted  in  tinding  that  the  managing  owner  had  a  joint  authority  to  make 
an  insurance  for  the  whole  ;  and  that  all  the  owners  were  liable  to  the  amount 
of  the  premium  and  commission,  notwithstanding  the  credit  was,  in  the  first 
instance,  given  to  the  managing  owner  alone,  it  appearing  that  the  broker  was 
ignorant  of  the  name  of  the  other  owners.  And  if  part-owners  of  a  ship,  be 
in  partnership  generally,  an  order  to  insure  given  by  oyie,  renders  all  liable. 
Hooper  v.  Lusby.  (e) 

This  first  section,  which  is  now  concluded,  treats  solely  of  the  first  sentence 
r  *in  1  ''^  ^^  pohcy,  which  was  taken  as  the  head  *of  this  section,  and, 
L  J  which  the  reader  will  observe,  called  upon  me,  according  to  the 

plan  I  have  proposed,  merely  to  state  briefly  the  persons  capable  of  being  the 
assured  in  the  policy  of  insurance.,  and  what  rules  have,  by  Legislative  enact- 
ments, been  laid  down  to  restrict  such  parties  who  legally  can  sue  on  the  policy 
to  those  persons  alone  who  answer  the  several  descriptions  mentioned  in  the  act 
of  Parliament,  in  every  case  of  a  contract  of  insurance  made  by  the  assured, 
or  his  agents,  with  the  assurers.  Let  us  now  proceed  to  the  next  immediate 
words  of  the  policy. 


SECTION  IL 


"lost    or   NOT    LOST 


»» 


These  words  "lost  or  not  lost,"  which  follow  the  word  "insured"  in  the 
policy,  are  words  of  the  greatest  importance  in  this  contract ;  and  they  are 
peculiar  to  English  policies,  and  are  not  inserted  in  the  policies  of  foreign 
countries,  (o)  They  are  certainly  very  hazardous  for  the  underwriters  j  for 
their  meaning  and  purport  are,  "  that  if  the  ship  or  goods  should  be  lost  at  the 
time  of  the  insurance,  still  the  underwriter,  provided  there  is  no  fraud,  is 
liable,  [b)  These  "words"  of  this  instrument  have  been  used  in  practice  by 
the  merchants  and  underwriters  of  this  country,  till  they  have,  at  length,  formed 
a  material  clause  in  the  policy  ;  and  the  effect  of  them  on  the  parties  to  the  con- 
tract, is  fully  upheld  by  the  Courts  of  law.  In  the  practice  and  law  of  marine 
insurance,  the  assured  makes  no  assurance  to  the  underwriter,  that  at  the  time 
of  making  the  policy,  the  ship  or  goods  are  safe,  or  even  in  existence  at  that 
moment.  This  might  appear  at  first  sight  too  hazardous  for  the  underwriters  ; 
but  it  must  be  borne  in  mind  the  value  of  the  amount  of  the  premiums,  of  the 
r  «i  1  "I  S^^^^  number  of  the  insurances  *they  underwrite,  not  one  of  which 
L  J  premiums,  one  may  venture  to  say,  out  of  a  hundred,  is  paid  under 

such  circumstances,  that  the  assured  are  by  law  enabled  to  recover  them  back 
from  the  underwriters. 

If  the  loss  has  happened  at  the  time  of  the  execution  of  the  policy,  to  the 
knowledge  of  the  assured  :  or  if  the  underwriter  knows  at  the  time  he  sub- 
scribes the  policy  of  the  safe  arrival  of  the  vessel,  it  is  clear  that,  in  both  these 

(e)  4  Camp.  66.  (a)  Roccus,  No.  175 ;  5  Burr.  2802. 

(ft)  MoUoy,  b.  2,  c.  7,  s.  5.  See  the  case  of  Blackhurst  v.  Cockrell,  Trin.  T.  29  Geo. 
3,  3  T.  R.  360. 


LOST    OR    NOT    LOST.  7 

cases,  the  policy  would  be  void  on  the  ground  o(  fraud.  There  is  a  recent 
decision  in  the  Court  of  King's  Bench,  in  the  case  of  Mead  v.  Davison,  (a) 
in  which  the  question  of  law  arose,  how  far  the  circumstance  of  both  parties 
to  the  contract  being  acquainted  with  the  loss  at  the  time  of  executing  the  policy, 
had  an  effect  upon  tlie  contract ;  and  the  Court  held  that  there  was  nothing 
illegal  in  an  underwriter,  who  had  received  the  consideration  for  entering  into 
the  contract,  executing  it  afterwards  with  a  full  knowledge  to  both  himself  and 
the  assured,  that  the  loss  had  actually  happened.  Lord  Denman,  C.  J.,  in 
delivering  the  judgment,  says  :  "  The  case  of  Earl  of  March  v.  Pigof,  (b)  is 
a  direct  authority  in  favour  of  the  right  to  recover,  if  the  loss  had  been  known 
to  neither  party  at  the  time  of  executing  the  policy.  According  to  that  case, 
and  indeed  on  the  plainest  general  principles,  if  the  loss  had  been  known  to  the 
assured  only,  the  policy  would  have  been  void.  But  no  case  has  determined 
that  an  underwriter,  who  chooses  to  execute  a  policy  with  full  knowledge  that 
the  loss  has  actually  happened,  may  not  be  bound  by  it.  His  conduct  might, 
indeed,  appear  extraordinary,  if  it  were  not  clear  that  he  had  a  good  legal  con- 
sideration for  entering  into  the  contract,  viz  : — the  payment  of  the  premium 
which  may  be  regarded  as  a  price  actually  given,  and  received  for  the  under- 
writer's indemnity  against  the  contingency  which  has  happened.  The  assured 
has  bought  and  paid  for  the  underwriter's  promise  to  indemnify.  If  the  ship 
had  arrived  safe,  the  underwriter  would  have  kept  the  whole  premium  ;  though 
*she  has  perished,  he  cannot  be  relieved  from  his  agreement,  r-  ^.^  -i 
Equity  would  have  compelled  him  to  execute  the  formal  policy  :  ■-  -^ 

in  voluntarily  executing  it,  he  has  only  performed  a  manifest  duty,  and  cannot 
now  retract  the  obligation." 

A  very  recent  case  (argued  in  the  Court  of  Exchequer,  H.  Vacation,  1843,) 
of  Sutherland  v.  Pratt,  (a)  may  be  conveniently  mentioned  in  this  place  as 
very  applicable  to  the  subject.  The  facts  will  be  sufficiently  gathered  for  our 
purpose,  from  part  of  the  judgment  of  the  Court  delivered  on  a  subsequent  day. 

Parke,  B. — "  In  this  case  the  plaintiff  declares  in  the  usual  form,  that  he 
caused  to  be  made  a  policy  of  assurance,  purporting  thereby  'that  Boggs, 
Taylor  and  Co.,  as  well  in  their  own  name,  as  for  all  persons  to  whom  the 
same  did,  mi^Jd,  or  should  appertain,  made  assurance,  and  caused  themselves 
and  them  to  be  assured  with  the  General  Maritime  Assurance  Company,  lost 
or  not  lost,  from  Bombay  to  London,'"  upon  any  kind  of  goods  and  merchan- 
dise, (fee,  "  beginning  the  adventure  upon  them  from  the  loading  thereof  on 
board  the  ship,  until  her  arrival  and  landing  of  the  goods."  The  insurance 
was  declared  to  be  on  360  bales  of  cotton.  The  declaration  then  stated  the 
admission  in  the  policy,  that  the  premiums,  &c.,  mutual  promises,  &;c.  The 
declaration  then  avers,  that  the  goods  were  loaded  at  Bombay,  and  then  (which 
is  not  in  the  usual  form,)  that  the  plaintiff  was  '•'-during  the  voyage*^  inter- 
ested in  the  goods,  in  the  policy  mentioned,  and  so  loaded,  to  a  large  amount 
to  wit :  the  amount  insured,  and  that  the  said  assurance  was  made  for  his  use 
and  on  his  account.  The  ship  is  then  stated  to  have  been  damaged  by  perils 
of  the  sea,  and  the  goods  thereby  damaged,  and  rendered  of  no  use  to  the 
plaintiff,  6ic.  To  this  declaration  the  eighth  plea  alleged  (which  is  the  only- 
plea  we  shall  refer  to  at  present)  "that  although  the  plaintiff  acquired  an 
interest  in  the  goods,  after  the  commencement  of  the  voyage,  to  the  amount 
insured,  yet  the  goods  were  damaged,  *and  diminished  in  use  and  r  *i  o  -i 
vahie  before  the  plaintiff  acquired  or  had  any  interest  therein,  and  L  J 

not  after.""     To  this  plea  there  was  a  general  demurrer,  which  raises  the  only 

(a)  3  A.  &  E.  303.  {b)  5  Burr.  2802. 

(a)   11  M.  &W.  296, 


8  AT    AND    FROM 


question  on  the  merits  of  the  case,  the  others  being  mere  matters  of  form.  We 
are  of  opinion  that  the  eighth  plea  contains  no  answer  to  the  declaration.  The 
plea  admits  expressly  that  the  plaintiff  had  during  the  voyage  an  interest  in 
the  goods  on  board,  to  the  amount  insured  therein ;  and  it  admits  impliedly 
(for  it  does  not  deny  that  allegation,)  that  the  insurance  was  made  for  the  use 
and  benetit  and  on  the  account  of  the  plaintiff,  against  any  loss  in  respect  of 
that  interest,  by  any  of  the  perils  insured  against.  This  being  admitted,  the 
simple  question  is,  whether  it  is  any  answer  to  an  action  on  a  policy  on  goods 
'•'■lost  or  not  lost,^'  that  the  interest  in  them  was  not  acquired  until  after  the 
loss.  AVe  are  of  opinion  that  it  is  not.  Such  a  policy  is  clearly  a  contract  of 
indemnity  against  all  past  as  well  as  :xllfuticre  losses,  sustained  by  the  assured 
in  respect  to  the  interest  insured.  It  operates  in  just  the  same  way  as  if  the 
plaintiff  having  purchased  goods  at  sea— the  defendants  for  a  premium,  had 
agreed  that  if  the  goods  had  at  the  time  of  the  purchase  sustained  any  damage 
by  perils  of  the  sea,  they  would  make  it  good.  The  plea  therefore  is  bad  in 
substance. 


SECTION  III. 

"at  and    from 


These  words  "at  and  from ,"  in  the  policy,  are  intended  to  represent 

the  name  of  the  place  at  which  the  ship  and  the  goods  which  are  laden  upon 
her  sets  out  on  her  voyage,  to  which  she  is  bound:  as,  for  instance,  "at  and 
from  Bombay  to  London.''  And  this,  according  to  the  statement  of  the  late 
Mr.  Justice  Park,  in  his  valuable  treatise,  (a)  "has  always  been  held  to  be 
necessary  in  the  policy,  at  least  for  upwards  of  two  centuries,  and  must  be  so, 
r  *AA  1  °"  account  of  the  *evident  uncertainty  which  would  follow  from  a 
L  J  contrary  practice,  as  the  assured  would  never  know  what  the  risk 

was  which  he  had  undertaken  to  insure." 

Molloy  has  laid  down  this  doctrine  that,  "if  a  ship  be  insured  from  London 
to  ,  a  blank  being  left  in  the  policy,  by  the  lader  of  the  goods,  to  prevent 
a  surprise  by  an  enemy,  and  if,  in  her  voyage,  she  happen  to  be  cast  away — 
though  there  be  private  instructions  for  her  port — yet  the  assured  must  sit 
down  with  his  loss,  by  reason  of  the  uncertainty."  He  cites  the  case  of 
Monsieur  Gourdan,  governor  of  Calais,  which  was  decided,  by  the  commis- 
sioners of  assurance  at  Rouen^  against  the  assured :  because,  although  the  bills 
of  lading  truly  declared  the  quantity  and  quality  of  the  goods,  the  port  of  the 
ship's  discharge  was  left  blank,  on  account  of  the  tvar  which  was  then  exist- 
ing, (a)     Such,  also,  is  now  the  law  and  usage  of  merchants.  (6) 

(a)  Parkins.  31.  (a)  Molloy,  b.  2,  c.  7,  s.  14. 

(b)  Park,  31. 


UPON   ANY    KIND    OF    GOODS   AND   MERCHANDISES. 


SECTION   IV. 

"upon    any    kind    OF    GOODS    AND    MERCHANDISES." 

The  above  words  will  lead  us  into  tlie  inquiry  as  to  what  description  of 
"goods  and  merchandises"  may  form  tlie  subject  of  marine  insurances  when 
laden  on  ships.  Ma^ens,  (c)  in  his  enumeration,  inchides  i\\e freight  or  lure 
of  ships  under  these  words.  Tliis,  however,  as  well  as  others  which  we  shall 
see  are  capable  of  being  the  subject-matter  of  the  insurance,  can  scarcely  be 
said  to  come  under  the  terms  "goods  and  merchandises,"  unless  "goods"  are 
intended  to  include  all  descriptions  of  "cliattels  personal;"  and  it  is  usual  to 
specify  some  kinds  of  the  property  to  be  insured  by  their  proper  names,  for 
in  many  instances  the  risk^  and,  of  course^  the  premium,  would  be  greater. 
Horses,  and  other  live  and  valuable  animals,  which  would  probably  come  under 
the  denomination  of  "goods"  in  the  policy,  are,  however,  generally  declared 
to  be  such  kind  of  goods  somewhere  in  the  policy.  *We  will  now  ^  ^.  ^  -, 
commence  stating  some  of  the  particular  kinds  of  things  or  pro-  L  J 

perty  which  are  not  by  law,  or  rather  by  the  use  of  merchants,  considered  to 
come  under  the  general  term  of  "goods,"  and  not  to  be  included  by  them. 
Thus  bottomry  and  respondentia,  which  arc  peculiar  kinds  of  property,  may 
be  the  subject  of  marine  insurance,  but  in  the  policy  it  must  be  particularly 
stated  to  be  respondentia  interest;  for  it  has  very  long  been  decided  by  a  case 
of  Glover  v.  Black,  (a)  that,  on  a  general  policy  "on  goods,"  the  assured 
cannot  recover  money  lent  on  bottomry.''^  The  action  was  upon  a  policy  of 
insurance  "on  goods  and  merchandises"  loaden,  or  to  be  loaden,  aboard  the 
Denham,  Tf\  Tryon,  commander,  at  and  from  Bengal  to  any  parts  or  places 
in  the  East  Indies,  until  her  safe  arrival  in  London.  The  evidence  was,  that, 
before  the  signing  of  the  policy,  the  plaintiff  had  lent  Captain  Tryon,  upon 
the  goods  then  loaden,  or  to  be  loaden,  on  board  the  said  ship,  on  account  of 
the  said  Captain  Tryon.  the  sum  of  £764,  at  respondentia,  for  which  a  bond 
was  executed  in  the  usual  form;  that  the  ship,  at  the  time  of  the  loss,  had 
goods  and  merchandises  on  board,  the  property  of  Captain  Tryon,  of  greater 
value  than  all  the  money  he  had  borrowed ;  that  the  ship  was  afterwards  burnt, 
and  all  the  goods  and  merchandise  were  totally  consumed  and  lost.  Upon 
these  facts  the  question  was,  whether  the  plaintiff  could  recover  .^  This  case 
was  argued  at  the  Bar ;  the  Court  took  time  to  consider  it,  and  were  unani- 
mous in  their  determination. 

Lord  Mansfield. — "I  inclined  at  the  trial,  and  since  upon  the  argument,  to 
support  this  insurance,  being  convinced  that  it  is  fair,  and  that  the  doubt  has 
arisen  by  a  slip,  in  omitting  to  specify  (as  it  was  intended  to  have  been  done) 
that  this  was  a  respondentia  interest.  The  ground  of  supporting  this  insurance, 
if  it  could  have  been  supported,  was  a  clause  in  the  19  Geo.  2,  c.  37,  s.  5, 
which,  as  to  the  purpose  of  insurance,  considers  the  borrower  as  having  a  right 
to  insure  only  for  the  surplus  value,  over  and  above  the  money  he  has  bor- 
rowed at  respondentia.  Yet  we  are  all  satisfied  that  this  act  *of  r-  ^.,g  -, 
Parliament  never  meant  or  intended  to  make  any  alteration  in  the  L  -^ 

manner  of  insurances  :  its  view  was,  to  prevent  gaming  or  wagering  policies, 
where  the  assurer  had  no  interest  at  all ;  and  if  the  lender  of  money  at  respon- 
dentia were  to  be  at  liberty  to  insure  for  more  than  his  own  interest,  it  would 
be  a  gaining  policy :  for  it  is  obvious  that,  if  he  could  insure  all  the  goods 
and  his  respondentia  interest  besides,  this  would  amount  to  an  insurance  more 

(c)  Magens,  4.  (a)  3  Burr.  1394;  1  Black.  405. 


10  UPON   ANY    KIND    OF    GOODS    AND    MERCHANDISES. 

than  his  whole  interest.  In  describing  respondentia  interest,  the  act  gives  the 
lender  alone  a  right  to  make  insurance  on  the  money  lent :  so  that  the  act  left 
it  on  the  practice.  I  have  looked  into  the  practice,  and  I  find  that  bottomry 
and  respondentia  are  a  particular  species  of  insurance  in  themselves,  and  have 
taken  a  particular  denomination.  I  cannot  find  even  a  dictum  in  any  writer, 
foreign  or  domestic,  that  the  respondentia  creditor  may  insure  upon  the  goods, 
as  goods.  I  find,  too,  by  talking  with  intelligent  persons,  very  conversant  in 
the  knowledge  and  practice  of  insurances,  that  they  always  do  mention  respon- 
dentia interest  when  they  mean  to  insure  it.  It  might  be  gready  inconvenient 
to  introduce  a  practice  contrary  to  general  usage,  and  there  may  be  some  open- 
ing to  fraud,  if  it  be  not  specified.  The  ground  of  our  resolution  is,  '  That  it 
is  now  established,  as  the  law  and  practice  of  merchants,  that  respondentia 
and  bottomry  must  be  specified  and  mentioned  in  the  policy  of  insurance.' " 

A  bottomry  bond  usually  expresses  on  the  face  of  it,  that  the  lender  takes 
upon  himself  the  perils  of  the  voyage:  but  it  is  not  necessary  that  this  should 
be  express  and  in  terms;  it  is  sufiTicient  if  the  fact  can  be  collected  from 
the  lano-uao-e  of  the  instrument,  considered  in  all  its  parts,  and  therefore  a 
declaration  in  an  action  of  insurance  declared  on  a  bottomry  bond,  is  supported 
by  an  instrument  of  such  description.  This  was  held  in  the  case  of  Simonds 
v.  Hodgson  (in  error  from  the  Common  Pleas.)  («)  Lord  Tenterden,  C.  J., 
P  ^^^  -,  in  delivering  the  judgment,  said,  "This  case  came  before  us  by 
L  -'  *writ  of  error  from  the  Court  of  Common  Pleas,  wherein  upon  a 

demurrer  to  the  declaration,  judgment  was  given  for  the  defendant.  The  de- 
claration was  upon  a  policy  of  insurance  in  the  common  form,  declared  to  be 
on  'bottomry,'  free  from  average,  and  without  benefit  of  salvage.  The  declara- 
tion sets  forth  the  instrument  of  bottomry,  Avith  proper  averments  to  connect 
that  with  the  policy.  Upon  the  argument  before  us  it  was  insisted  in  behalf 
of  the  plaintiffs,  that  the  instrument  set  out  in  the  declaration,  was  an  instru- 
ment of  bottomry,  in  the  proper  and  legal  sense  of  that  word,  in  which  the 
lender  takes  upon  himself  '  the  risk  of  the  voyage. '  On  this  point  we  are  all 
satisfied  that  the  judgment  ought  to  be  for  the  plaintiffs." 

But  it  does  not,  therefore,  follow  that  "special  interests"  in  "goods"  may 
not  be  recovered  under  the  common  form  of  an  insurance  upon  "goods  :"  and 
Lord  Mansfield  himself,  at  the  end  of  his  judgment  in  Glover  v.  Black, 
expressly  reserves  both  himself  and  the  Court  from  having  laid  down  such  a 
general  rule,  (a)  We  have  seen  diat  according  to  28  Geo.  3,  c.  56,  not  only 
the  persons  who  are  interested  in  the  assurance  in  "goods,"  but  likewise  the 
consignor  or  consignee,  may  declare  on  such  a  policy  on  goods,  without  stating 
their  character  in  the  pohcy."  And  see  the  case  of  JVolff  \.  Horncastle,{b) 
to  which  we  have  already  referred  at  some  length,  (r)  And  generally  it  is 
necessary  to  state  accurately  ^'-the  subject-matter"  of  the  insurance,  but  it  is 
not  essential  to  state  the  '■'■particular  interest"  which  the  assured  has  in  it. 
Thus,  a  person  who  has  several  interests  in  a  cargo,  viz  :  as  partner  in  seven- 
sixteenth,  as  consignee  of  the  whole;  and  as  having  a  /ten  as  factor  on  the 
whole  for  advances:  may  protect  them  all  by  one  insurance,  without  stating 
in  the  policy  the  number  or  nature  of  his  interests,  (d) 

In  tlie  recent  case  of  Crowley  v.  Cohen,  (e)  which  was  an  action  on  a  policy 
r  *isa  n  "f  insurance  on  "goods"  made  by  carriers;  *it  was  objected  for 
L  J  the  defendants  that  the  policy  which  pursued  the  ordinary  form. 


(a)  3  B.  &  A<1.  50.     See  also  the  full  report  of  the  judgment,  p.  56,  and  see  the  form 
of  the  bond  at  p.  51. 

(«)  3  IJurr.  1401.  (h)   1  B.  «fe  P.  316. 

(r)  Ante,  p.  4.  (d)  Carruthers  v.  Sheddon,  6  Taunt.  14. 

(c)  3  B.  &  Ad.  478. 


UPON   ANY    KIND    OF    GOODS   AND    MERCHANDISES.  11 

did  not  cover  the  interest  of  the  plaintiffs,  since  it  purported  to  protect  goods 
against  the  usual  risks  to  which  the  owners  of  goods  are  liable ;  whereas,  the 
loss  alleged  was  one  arising  out  of  the  ■plaintiffs''  liability  as  carriers,  to 
risks  to  which  carriers  are  liable. 

Lord  Tenterden. — "  It  is  objected  that  this  policy  is  not  framed  so  as  to 
cover  'fAe  interest''  in  respect  of  which  the  plaintiffs  claim.  But  I  agree  in 
the  proposition  laid  down  in  the  argument  on  their  side,  that  although  the  sub- 
ject-matter of  the  insurance  must  be  j^roperly  described,  the  nature  of  the 
interest  may  in  general  be  left  at  large.  Here  the  subject-matter  is  very  suffi- 
ciently described,  and  the  policy  shows  that  the  sum  to  be  received  in  case  of 
loss,  was  to  be  (or further  consideration,  'as  interest  might  appear  to  be  here- 
after.^ The  instrument  is  not  artificially  framed — it  would  have  been  better  if 
it  had  expressly  sliown  that  the  object  was  to  indemnify  the  plaintiffs  as  car- 
riers, still  I  think  it  is  sufficient.  («)  And  in  the  case  of  Lecras  v.  Hughes,  (b) 
Lord  Mansfield  says,  'insurance  is  a  contract  of  indemnity,^  some  interest  is 
necessary,  but  not  any  '•particular form  of  interest;^  it  does  not  depend  upon 
a  vested  formal  interest." 

Although  the  decision  in  Glover  v.  Black  has  been  always  upheld,  yet  in  a 
subsequent  case  before  Lord  Mansfield,  of  Gregory  v.  Christie,  (c)  it  was 
ruled  that  money  expended  by  the  captain  for  the  use  of  the  ship,  and  for 
which  respondentia  interest  was  charged,  might  be  recovered  under  an  insu- 
rance on  "goods,  specie,  and  effects,"  provided  the  usage  of  the  trade,  which 
in  matters  of  insurance  is  always  of  great  weight,  sanctions  it.  This  case 
was  an  action  upon  a  policy  of  insurance  on  "goods,  specie,  and  effects"  of 
the  plaintiff,  who  was  also  the  captain,  on  board  the  ship :  the  plaintiff  claimed 
under  that  insurance,  money  expended  by  him  in  the  course  of  the  voyage  for 
the  use  of  the  ship,  and  for  Avhich  *he  charged  respondentia  inter-  p  ^,q  -, 
est.     Lord  Mansfield  said  as  to  the  question,  whether  the  words  L  J 

"goods,  specie,  and  effects,"  extended  to  this  interest,  I  should  think  not,  if 
we  were  to  consider  only  the  words  made  use  of.  But  here  is  an  express 
usage  which  must  govern  our  decision.  A  great  many  captains  in  the  East 
India  service  swear,  that  this  kind  of  interest  is  always  insured  in  this  kind  of 
way.     I  observe  the  person  insured  here  is  the  captain." 

Secondly  :  it  has  been  held  that  the  master's  clothes,  or  the  ship's  provisions, 
do  not  come  under  the  term  "goods;"  nor  "goods"  lashed  on  deck,  unless 
sanctioned  by  usage. 

In  the  case  of  Ross  v.  Thwaite,  Sit.  after  Hil.  16  Geo.  3,  at  Guildhall,  (o) 
the  action  was  brought  upon  a  policy  of  insurance  of  "  the  captain'' s  goods'''' 
for  six  months  certain.  The  loss  proved  was  chiefly  for  ^^  goods  lashed  on 
deck,''^  and  the  "  captain's  clothes"  and  the  "  ship's  provisions."  It  was  proved 
by  an  underwriter  and  a  broker,  that  none  of  those  things  are  within  a  general 
policy  "  on  goods  ;"  for  the  risk  was  greater,  as  to  goods  lashed  on  deck,  than 
other  goods  :  and  a  policy  means  only  such  "goods"  as  are  merchantable,  and 
a  part  of  the  cargo.  They  also  swore,  that  when  goods  like  the  present  are 
meant  to  be  insured,  they  are  always  insured  by  name,  and  the  premiian  is 
greater.  Lord  Mansfield  said,  he  thought  it  consistent  with  reason,  and  under- 
stood the  usage  ivas  so  :  therefore  he  advised  the  plaintiff  to  withdraw  a  juror, 
the  premium  having  been  paid  into  Court,  to  which  he  consented. 

And  in  another  case  Mr.  J.  Chambrc  and  a  special  jury,  decided  that  "  goods 
stowed  on  deck,''''  were  not  within  a  general  policy  on  "goods."  Backhouse 
V.  Ripley,  Sit.  after  Mich.  1802,  in  C.  P.  {b) 

(a)  See  Palmer  v.  Pratt,  2  Bing.  185.  (Jj)  Park  Ins.  569. 

(c)  B.  R.  Trin.  24  Geo.  3.     Parkins.  10.     (a)  Parkins.  23. 
\b)  Park  Ins.  24. 


12  UPON    ANY    KIND    OF    GOODS   AND   MERCHANDISES. 

But  where  there  was  an  insurance  on  '•'■forty  carboys  of  vitriol,""  it  was 
held  to  be  sufficient,  that  they  were  carefully  "■stowed  on  deck,''  that  being  a 
usucd  place  for  that  commodity,  without  informing  theiinderwriterofit;  and, 
-.  although  *it  was  usual  sometimes  to  bed  them  in  sand  in  the  hold. 
[     *20      J  jj^  Costa  V.  Edmonds,  (a)     The  Court  afterward  confirmed  the 
decision  at  Nisi  Prius.  {b)     And  in  the  recent  case  of  Gould  v.  Oliver,  (c)  it 
has  been  decided  that  the  07vner  of  a  cargo  of  timber  ^'^  laden  on  deck,''  pur- 
suant to  the  custom  of  the  particular  trade,  was  entitled  to  contribution  from  the 
ship-owner  in  the  case  of  a  "general  average."     A  subsequent  action  was 
brought  by  the  plaintiffs  against  the  ship-owner  on  the  charter-party,  in  which 
the  plaintiffs  had  a  verdict  with  general  damages.     The  reader  is  referred  to 
the  full  report  of  this  case,  when  cause  was  shown  in  the  Common  Pleas, 
against  a  rule  which  had  been  obtained  for  a  new  trial ;  (d)  he  will  find  in  this 
case  the  subject  of  the  "loading  of  a  deck  cargo,"  and  the  practice  and  usage 
relating  thereto,  fully  discussed  by  the  argument  at  the  Bar,  with  reference  to 
the  evidence  given  at  the  trial.     As  the  case  was  not  on  a  policy  of  insurance, 
I  must  content  myself  with  a  few  observations,  copied  from  the  judgment  of 
Lord  C.  J.  Tindal.     He  begins  by  stating,  "this  was  an  action  of  assumpsit 
on  a  charter-party,  made  between  the  defendant  therein  described  as  the  owner 
of  the  ship,  called  the  '  Christopher,'  then  lying  at  London,  of  the  one  part, 
and  the  plaintiffs  therein  described  as  merchants  of  the  other  part,  whereby  it 
was  ao-reed  that  the  ship  should  sail  with  all  convenient  speed  to  Quebec,  or  as 
near  thereto  as  she  could  safely  get,  and  there  load  from  the  factors  of  the  plain- 
tiff, a  full  and  complete  cargo  of  pine  timber  deals,  &c,,  '  not  exceeding  U'hat 
she  could  reasonably  stow  and  carry  over  and  above  her  tackle,'  &c.     The 
declaration  assigned  three  breaches  :  first,  '  that  the  defendant  would  not  load 
in  and  on  board  the  said  ship,  a  full  and  complete  cargo,  not  exceeding  ivhat 
she  could  reasonably  stow  and  carry,  over  and  above  her  tackle,  &c.,  hut  on 
the  contrary,  '  loaded  on  board  the  ship  a  cargo,  much  exceeding  what  the 
-,  said  vessel  coidd  reasonably  stow  and  carry  over  *and  above  her 
[     *2 1       J  tackle,  &c.     The  second  breacli  was  for  '  carelessly  and  impro- 
perly loading  par/ 0/ ^/le  cargo  on  deck,'  whereby  the  plaintiffs  were  prevented 
from  insuring  :  and  tlie  third,  for  not  taking  proper  care  of  the  cargo,  whereby 
it  was  lost.   "One  objection  to  the  direction  of  the  Judge  is,  that  he  told  the  jury 
that  if  the  '  loading  the  deck  cargo  increased  the  danger  of  navigation  it  was 
an  improper  practice  ;'  thereby,  as  it  is  said,  excluding  the  consideration  of 
usage,   and   making  the  increase  of  danger  the   absolute  test  of  '■improper 
stowao-e.'     But  tlie  language  of  the  learned  Judge  must  be  viewed  with  refer- 
ence to  the  case  before  the  jury.     If  'a  particular  mode  of  stoivage'  be  con- 
formable to  the  established  usage  of  trade,  it  may  not  be  improper,  though 
another  'mode  of  stoivage'  may  be  more  safe."     In  this  case  it  was  proved 
that  the  practice  of  stowing  timber  upon  deck"  was  very  general,  but  also 
shown  when  the  cargo  was  so  loaded  and  a  loss  occurred,  the  shipowners  in 
the  absence  of  any  stipulation  to  the  contrary,  had  paid  the  loss  to  the  shipper  : 
and  no  instance  was  given  in  which  the  loss  had  been  sustained  by  the  shipper. 
It  was  further  shown  that  insurances  upon  "  deck  cargo"  could  not  be  made 
unless  at  a  triple  premium  :  and  still  that  it  was  not  unusual  to  insert  a  special 
clause  in  the  charter-party,  that  tlie  ship  should  have  a  '■'deck  load."     Prima 
facie,  "the  deck"  is  an  improper  place  for  the  cargo,  or  any  part  of  it.  The 
'duty  of  stowing  the  cargo  belongs  to  the  master;  and  no  evidence  was  given 
of  a  i^eneral  custom  to  load  "a  deck  cargo"  at  the  risk  of  the  shipper.     So 


(a)  4  Camp.  142.  (*)   2  Chitty,  227. 

(c)  .5  Scott,  44.'3;  B.  N.  C.  134;  and  seethe  case  of  Milward  v.  Hibbert,  3  Q.  B.  120. 

{d)  2  Scott's  N.K.  241. 


UPON    ANY   KIND    OF    GOODS   AND    MERCHANDISES.  13 

far  as  the  evidence  upon  this  subject  went,  it  showed  that  wlienever  a  loss  had 
occurred,  it  had  been  made  good  by  the  shipowner,  and  consequently,  lie  had 
no  right  by  custom  to  throw  the  loss  upon  the  shipper.  The  learned  Judge, 
therefore,  told  the  jury,  that  they  were  not  to  consider  the  matter  with  reference 
to  the  custom,  but  with  reference  to  ihe  fact,  whether  the  stowage  was  actually 
improper ;  that  is  to  say,  whether  it  was  such  as  to  increase  the  perils  of  the 
navigation.  The  great  body  of  the  evidence  on  both  sides  was  directed  to  the 
*qiiestion,  whether  the  danger  was  increased  or  diminished,  by  the  r-  ^^^^  -, 
stowage  on  the  deck  ?  the  plain  tilf's  witnesses  stating  the  former,  L  -' 

and  the  defendant's  the  latter.  The  question  left  to  the  jury  was,  ivhether  the 
timber  stowed  upon  the  deck  was  properly  or  improperly  stowed?  the  Judge 
telling  the  jury,  "  that  if  it  increased  the  danger  of  the  ship,  or  increased  the 
danger  to  that  part  of  the  cargo,  in  either  case  it  was  an  improper  stowage, 
because  it  tended  to  the  injury  of  the  shipper.''''  It  was  finally  left  to  the  jury 
in  the  language  of  the  issue,  "  was  this  cargo  improperly  stowed?  The  jury 
found  that  it  was  improperly  stoived:  and  we  do  not  think  the  direction  to  the 
jury,  under  the  circumstances  of  the  case,  to  exclude  from  their  consideration 
the  evidence  of  the  practice,  was  wrong.  For  these  reasons  we  are  of  opinion, 
that  the  defendant  is  not  entitled  either  to  enter  a  verdict  for  her,  or  to  have  a 
new  trial,  but  we  think  a  venire  de  novo  should  be  awarded." 

Thirdly,  it  has  been  thought  that  there  was  some  doubt  respecting  the  recov- 
ery of  money,  gold  and  silver  coin,  and  bullion,  after  a  loss  under  a  policy 
on  "goods  and  merchandises."  This  question  does  not  appear  to  have  had 
sufficient  doubt  cast  upon  it  to  afford  any  decision  in  our  courts  of  law,  as 
there  is  (according  to  tlie  statement  of  the  late  Mr.  J.  Park,  in  his  treatise)  no 
case  in  the  books  in  which  the  doubt  was  ever  raised.  In  the  case  of  Da  Costa 
v.  Firth,  {a)  the  subject-matter  of  the  insurance  was  bullion,  and  the  policy 
was  general  on  "goods  and  merchandises,"  but  no  objection  seems  to  have 
been  taken  at  that  time.  Magens,  in  his  book  "  On  Insurances,"  states,  "  that 
gold  and  silver  coined  or  uncoined,  pearls,  and  other  jewels,  may  be  insured 
at  London,  Hamburg,  and  other  places,  under  the  expression  in  the  policy 
'of  goods  and  merchandises,^  {b)  and  as  goods  declared  in  the  policy  'bullion,' 
'coin,'  &c.,  there  would  be  a  sufficient  notice  of  the  value  of  the  goods  to 
inform  the  underwriters."  The  same  writer  gives  a  list  of  the  ordinances  of 
*several  foreign  states  in  which  money  shall  not  be  recovered,  un-  r-  ^^r.  -i 
less  it  be  expressed  in  the  policy  "  that  it  is  money  ivhich  is  to  be^  -' 

insured.''^  (a)  In  France,  these  articles  may  be  insured  under  the  general 
terms  "goods"  and  "merchandise,"  provided  the  transport  of  them  be  not 
prohibited,  (b)  Eoccus,  in  his  treatise,  concurs  in  the  opinion  that  these  things 
may  be  insured  under  the  general  expression  of  the  policy,  where  they  forin 
part  of  the  cargo,  and  he  draws  a  distinction  between  them  and  money,  jeivels, 
and  such  things  as  are  on  the  persons  or  designed  for  the  ivear  of  passengers 
on  board :  the  former,  he  says,  is  clearly  liable  to  contribute  to  a  general 
average,  and  the  latter  not.  He  says. — "  Assecurans  merces  intalem  navem 
immissas  intelligitur  assecurare  pecuniam,  aurum,  argentum,  gemmas  mar- 
garitas  et  annulos  in  dicta  navi  existentes,  quae  omnia  appellatione  mercium  in 
navem  immissarum,  comprehendentur,  licet  expressa  non  fuissent  Santerna 
declarat,  quod  si  pecuniae,  margaritae  et  annuli  erant  destinati  ad  vendendum  vel 
mercandum  alias  merces,  tunc  appellatione  mercium  veniunt,  et  in  assecuratione 
comprehenduntur  et  loco  mercium  habentur  :  vocat  dictas  res  merces,  cum 
occasione  earum  habeat  locum  contributio,  sicut  aliarum  rerura,  ne  in  istis  asse- 


(a)  4  Burr.  1966,  (b)   1  Magens,  10. 

(a)  2  Magens,  71,  89,  131,  187.  {b)  Emerigon,  torn.  1,  p.  297. 


14  UPON  ANY   KIND   OF   GOODS  AND   MERCHANDISES. 

curationibus  mercatorum  potius  apices  juris,  quam  Veritas  observari  videantur : 
et  tandem  quia  large  comprehenduntur  omnes  res,  quae  sunt  destinatse  ad  nego- 
tiandum,  et  facit  etiam,  quod  confiscatio  mercium  navis  extenditur  etiam  ad 
pecuniam  numeratam. "  (c) 

Fourthly,  the  wages  of  mariners  are  not,  by  the  laws  of  this  country,  allowed 
to  form  the  subject-matter  of  an  insurance ;  and  this  rule  is  agreeable,  like- 
wise, to  the  laws  of  all  foreign  trading  countries,  (rf)  This  rule  of  law,  though 
apparently  severe  on  the  mariner,  is  nevertheless,  it  must  be  admitted,  based 
on  good  policy,  as  one  of  the  greatest  securities  for  the  safe  arrival  of  the  vessel 
by  the  exertions  of  the  sailors,  which  would,  as  a  matter  of  course,  be  much 
r  *9±  1  diminished  if  they  could  protect  themselves  by  such  means.  This 
L  ■^'*  J  *rule  extends  to  the  length  of  establishing  another,  viz  : — "  That 
no  seaman  can  avail  himself  of  the  insurance  of  the  ship  or  cargo."  In  the 
case  of  the  Lady  Durham.,  (a)  Sir  /.  Nicholl  says,  "It  is  thrown  into  the 
summary  petition  that  the  owner  had  made  insurances  on  the  homeward  cargo  ; 
but  '  that  ivill  not  give  the  seaman  a  legal  right  to  wages :  it  may  induce  the 
owner  to  act  with  liberality,  but  it  cannot  induce  me  to  violate  a  principle  and 
rule  of  laiv,  whatever  may  be  the  hardship  on  the  seaman.''  The  policy  of 
the  law  requires  that  a  seaman  shall  not  insure  his  ivages;  he  must  take  the 
risk  of  the  ship,  and  stand  by  her  at  every  hazard :  he  has  a  lien  on  the  ship 
to  the  last  plank,  and  on  the  freight  ivhich  is  appurtenant  to  the  ship  ;  and  J 
think  that,  in  principle,  the  king^s  advocate's  argument  is  not  remote,  and 
that  an  insurance  on  the  ship  does  not  benefit  the  seaman  ;  for  if  the  seaman 
could  look  to  the  insurance  of  the  ship  as  a  security  for  his  tvages,  it  woidd 
be  a  sicbstitutionfor  his  own  private  insurance,  and  looidd  defeat  the  policy 
of  the  law.  A  seaman  knows  whether  the  ship  is  insured  or  not,  and  if  such 
an  insurance  coidd  enure  to  his  advantage,  it  might  make  him  indifferent  or 
moderate,  if  not  extinguish  all  exertion  on  his  part.'''' 

This  rule  of  law  does  not  effect  the  master  of  the  ship ;  and  it  has  been 
holden  that  an  insurance  on  the  commission,  privileges,  &c.,  of  the  captain  of 
a  ship  in  the  African  trade  was  valid,  when  that  traffic  ivas  legal,  (b) 

And  in  this  respect  the  English  law  corresponds  with  the  French,  in  allow- 
ing the  captain  of  a  ship  to  insure  goods  ivhich  he  has  on  board,  or  his  share 
in  the  ship,  if  he  be  a  part-owner,  (c)  But  a  master  of  a  ship  has  not  a  lien 
on  the  freight  for  his  tvages,  or  for  his  disbursements  on  account  of  the  ship 
during  the  voyage;  [d)  and  therefore  a  policy  of  insurance  "on  money  lent 
to  a  captain  of  a  ship,  payable  out  of  the  freight,  is  illegal  and  void  on  the 
face  of  it."  {e) 

P     ^f,_      -,      *Fifthly,  freight,  or  the  proft  derivable  from  the  carriage  of 
L  J  goods,  or  hire  of  a  vessel  under  a  charter-party,  constitutes  a 

good  insurable  interest.  "It  would,  indeed,  be  extraordinary,"  says  Mr.  J. 
Chambre,  in  delivering  his  opinion  in  the  case  of  Lucena  v.  Craufurd,  (a) 
^^  if  freight  could  not  be  made  the  sitbjcct  of  protection  by  an  instrument 
which  hud  its  origin  from  commerce,  and  ivas  introduced  for  the  very  pur- 
pose of  giving  security  to  mercantile  transactions.  It  is  a  solid,  szibstanfial 
interest,  ascertained  by  contract,  and  arising  from  labor  and  capital  em- 
ployed for  the  purpose  of  commerce.  But  even  in  this  case  the  existence  of 
a  subject  out  of  which  freight  may  arise,  or  be  earned,  is  yiccessary,  as  is 
settled  by  the  case  of  "I'onge  v.  Watts,  (b)  lately  cited  and  approved  of  by 


(c)  Roccus,  Not.  17.  (</)  1  Magcns,  18. 

(a)  3  Hagg.  A.  R.  p.  200.  (/>)  King  v.  (Jlover,  2  New  Rep. 

(c)  Emcrig.  torn.  1,  p.  236.  (r/)  Smith  v.  Plummcr,  1  B.  &  A.  575. 

(e)  Wilson  v.  K.  Exchange  Co.  2  Camp.  626. 

(a)  3  B.  &  P.  102.  {!))  2  Strange,  125. 


UPON    ANY    KIND    OF    GOODS    AND   MERCHANDISES.  15 

Lord  Kenyon^  in  the  case  of  T7iompson  and  Taylor/^  (c)  When  freiglit  is 
intended  to  be  insured  it  should  be  mentioned,  eo  nomine,  in  the  policy,  {d) 

The  owners  have  an  insurable  interest  in  the  profits  which  they  expect  to 
make  in  carrying  their  own  goods  in  their  own  sliip ;  decided  in  the  cases  of 
Flint  V.  Flonyng,  (e)  and  Devaux  v.  T Anson,  {/)  which  important  cases 
will  be  more  fully  referred  to  in  a  subsequent  part  of  this  treatise. 

Sixthly,  carriers  have  likewise  a  special  property  in  the  goods  entrusted  to 
their  care,  and  they  may  protect  ^^ their  interest''''  in  them  by  an  insurance; 
and  although  it  is  not  absolutely  necessary  to  state  particidarly  in  tlie  policy 
that  it  is  their  ^^ special  interest  as  carriers,''''  still  it  is  more  correct  to  do  so, 
as  said  by  liord  Tenterden,  m  the  case  of  Croivley  v.  Cohen,  [g)  which  was 
mentioned  before.  (A) 

There  are  many  more  instances  in  which  the  assured  may  protect  his  "inter- 
est" in  different  mercantile  concerns,  which  we  shall  have  presently  to  men- 
tion ;  it,  however,  is  my  object  at  present, 

^Seventhly,  to  refer  to  a  class  of  cases  which  have  been  by  the  p  .,  _  -, 
statute  law  of  the  country  declared  to  be  absolutely  null  and  void.  L  J 

This  class  are  what  are  called  wager-policies,  or,  in  other  terms,  policies  on 
''^interest  or  no  interest." 

Mr.  J.  Park  (a)  lays  it  down,  that  "the  nature  of  the  contract  of  insurance 
in  its  original  state  was,  that  a  specific  voyage  should  be  performed,  free  from 
the  perils  of  the  seas ;"  and,  in  case  of  accidents  during  such  voyage,  the 
assurer,  on  consideration  of  the  premium  he  received,  was  to  bear  the  mer- 
chant harmless.  It  followed,  from  dience,  that  the  contract  related  to  the 
safety  of  the  voyage,  thus  particularly  described  in  respect  either  of  ship  or 
cargo,  and  that  the  assured  could  not  recover  beyond  the  amount  of  his  real  loss. 

In  process  of  time,  however,  variations  were  made,  by  express  agreement, 
from  the  first  kind  of  policy ;  and  in  cases  where  the  trader  did  not  think  it 
proper  to  disclose  the  nature  of  his  interest,  the  assurer  dispensed  with  the 
assured  having  any  interest  either  in  the  ship  or  cargo.  In  this  kind  of  policy, 
valued  yVee  from  average  and  interest  or  no  interest,"  it  is  manifest  that  the 
performance  of  the  voyage  or  adventure  in  a  reasonable  time  and  manner,  and 
not  the  bare  existence  of  the  ship  or  cargo,  is  the  object  of  the  insurance. 
Such  an  object  as  that,  with  a  reference  to  the  real  nature  of  insurance,  "that 
it  is  a  contract  of  indemnity"  from  a  real  and  manifest,  not  from  a  supposed 
or  ideal  loss,  must  have  been  originally  bad.  Indeed  it  had  been  declared 
from  the  Bench,  prior  to  the  discussion  of  Jissievedo  v.  Cambridge,  {b)  in 
the  reign  of  Queen  Anne,  that  such  insurances  were  formerly  held  to  be  bad  ; 
for  it  is  taken  for  granted  in  1692  to  be  settled  law  that,  in  former  times,  if  one 
had  no  interest,  though  the  policy  ran  "interest  or  no  interest,"  the  insurance 
was  void.  After  argument  (but  a  second  argument  was  ordered,  but  does  not, 
from  any  reporter,  appear  ever  to  have  been  made,)  it  was  held  "that  the 
defendant  was  entitled  to  judgment."  Upon  this  case  Lord  Mans-  r-  jj,.,_  -, 
field,  *in  the  case  of  Goss  v.  Withers,  has  observed  (a)  "that  the  L  -' 

man-of-war  which  retook  the  ship,  brought  her  into  the  port  of  London,  and 
restored  her  to  the  owner  upon  reasonable  redemption :  (that  appears  from  the 
special  verdict  j)  and  then  the  owner,  not  abandoning  the  ship,  could  only  have 

(c)  6  T.  R.  478. 

\d)  2  New  Rep.   315;   11  Vcs.  628;  and  see  Baillie  v.  Moudigliani,  B.  R.  Hill,  25 
Geo.  3;  Park  Ins.  116. 

(c)   1  B.  &  Ad.  45.  (/)  7  Scott,  507;  5  Bing.  N.  C.  519. 

Ig)  3  B.  &  Ad.  478.  (A)  Ante,  p.  17. 

(a)   Parkins,  vol.  2,  p.  551.  (6)   10  Mod.  77. 

(a)  2  Burr.  695. 

Vol.  VIL— C 


16  UPON    ANY    KIND   OF    GOODS   AND    MERCHANDISES. 

come  upon  the  insurers  for  the  redemption ;  and  no  question  could  have  arisen 
about  the  change  of  property.  But  the  poUcy  being  'interest'  or  'no  interest,' 
without  benefit  of  salvage,  the  question  arose  upon  the  terms  and  meaning  of 
the  tvager.  That  case  was  not  determined."  And  his  Lordship,  relating  the 
circumstances  of  the  principal  case  of  Goss  v.  Withers,  says,  [b)  "whatever 
rule  ought  to  be  followed  in  favour  of  the  owner  against  the  recaptor  or  vendee, 
it  can  in  no  way  affect  the  case  of  an  insurance  between  the  assurer  and  the 
assured.  The  ship  is  lost  by  capture ;  though  she  be  never  condemned  at  all, 
nor  carried  into  any  port  or  fleet  of  the  enemy,  the  assurer  must  pay  the  value. 
If,  after  condemnation,  the  owner  recovers  or  retakes  her,  the  assurer  can  be 
in  no  other  condition  than  if  she  had  been  recovered  or  retaken  before  condem- 
nation. The  reason  is  plain,  from  the  nature  of  the  contract.  The  assurer 
runs  the  risk  of  the  assured,  and  undertakes  to  indemnify :  he  must,  therefore, 
bear  the  loss  actually  sustained,  and  can  be  liable  to  no  more.  So  that  if,  after 
condemnation,  the  owner  recovers  the  ship  in  her  complete  condition,  but  has 
paid  salvage,  or  been  at  any  expense  in  getting  her  back,  the  assurer  must  bear 
the  loss  actziaUy  sustained.  This  point  would  not  have  been  started  in  poli- 
cies upon  real  interest,  because  it  never  could  have  varied  the  case,  but  wager 
policies  gave  rise  to  it:  it  was  necessary  to  set  up  a  total  loss,  as  between 
third  persons,  for  the  purpose  of  their  wager,  though,  in  fact,  the  ship  was 
safe,  and  restored  to  the  owner.  In  the  case  of  Spencer  v.  Franco,  (c)  the 
r  »9».  1  South  Sea  ship.  Prince  Frederick,  had  returned  safe  to  the  *port 
L  J  of  London  with  her  cargo  :  the  wagerers  contended  that  she  was 

"totally  lost  at  La  Vera  Cruz,^^  from  this  notion  of  a  change  of  property,  but 
failed.  Depaiba  v.  Ludloiv  {a)  was  also  a  wager  policy ;  and  the  property- 
could  not  be  changed,  because  there  was  then  no  war,  nor  even  a  declaration 
of  war :  but  the  Court  held  that,  as  the  ship  had  been  once  taken  in  fact,  the 
event  had  happened,  though  she  was  afterwards  recovered."  So  in  the  case 
of  Pond  v.  King,  {b)  which  was  also  a  wager  policy.  But  in  the  case  of 
Fitzgerald  v.  Pole,  (c)  the  majority  of  the  Judges  and  the  House  of  Lords,  in 
1754,  held  "that,  though  the  ship  might  be  deemed  for  a  time  'as  lost,'  yet, 
as  she  was  afterwards  recovered,  the  event  of  a  total  loss  had  not  finally  hap- 
pened, according  to  the  construction  of  the  wager." 

In  the  case  of  Depaiba  v.  Ludloiv,  before  mentioned,  the  counsel  there 
observed,  and  was  not  contradicted  by  the  Court,  that  insurances  upon  "inter- 
est or  no  interest"  were  introduced  since  the  Revolution :  and  from  the  date  of 
the  cases  of  wager  policies  mentioned  by  Lord  Mansfield,  in  Goss  v.  Withers, 
this  appears  to  be  so ;  and  if  the  law  of  England  (as  Mr.  J.  Park  observes,  (d)) 
previous  to  the  Revolution,  was  more  agreeable  to  the  true  intention  of  the 
contract  between  the  assurers  and  assured,  than  it  afterwards  came  to  be — it 
was,  according  to  Magens,  (c)  consonant  to  the  laws  on  this  subject  of  most  of 
the  commercial  states  in  Europe,  viz  :  of  Middlcburg,  Genoa,  Konishurg, 
Rotterdam,  and  Stockholm,  by  the  regulations  of  which  countries,  all  insu- 
rances upon  wagers,  or  "as  interest  or  no  interest,"  are  declared  absolutely 
void,  and  of  no  effect. 

In  England,  after  the  bad  practice  of  resorting  to  these  wagering  contracts 
had  come  into  use,  the  Courts  of  Justice,  particularly  the  Equity,  began  very 
r  *oQ  "1  ^oon  to  treat  tliem  in  *a  very  imfavourable  manner.  In  the  case  of 
L  -J  Goddart  v.  Garret,  (a)  the  defendant  had  lent  money  on  a  bot- 


(//)  2  Burr.  694,  695. 

(c)  Before  Lord  Ilardwickc,  at  Guild.  1735.     Lex  Merc.  red.  4th.  316. 

(«)  Comyn's  R.  360.  (b)    1  Wils.  191. 

(c)  5  Bro.  Par.  Cas.  131,  214.  (rf)   Park.  Ins.  552. 

(e)  2  Magens,  70,  65,  88,  189,  257.  (a)  2  Vcrn.  269,  Trin.  Term,  1692. 


UPON    ANY    KIND    OK    GOODS   AND    MERCHANDISES.  17 

tomry  bond,  but  had  no  interest  in  the  ship  or  cargo — the  money  lent  was 
300/.,  and  lie  insured  450/.  on  the  ship;  the  plaintiff's  bill  was  to  have  the 
policy  delivered  «p :  because  the  defendant  was  not  interested  in  the  ship  or 
cargo. 

Per  Curiam. — Take  it  that  the  law  is  settled,  that  if  a  man  has  no  interest 
and  insures,  the  insurance  is  void,  though  it  be  expressed  in  the  policy,  "inter- 
ested or  not  interested."  The  reason  that  the  law  goes  upon  is,  that  insurances 
were  made  for  the  benefit  of  trade,  and  not  that  persons  unconcerned  therein, 
and  who  were  not  interested  in  the  ship,  should  profit  thereby ;  and,  where 
one  ivho  ivould  have  the  benefit  of  the  insurance^  he  must  renounce  all  inter- 
est in  the  ship.  And  the  reason  why  the  law  allows  that  a  man  having  some 
interest  in  the  ship  or  cargo  may  insure  more,  or  five  times  as  much,  is,  that  a 
merchant  cannot  tell  how  much  or  how  little  his  factor  may  have  in  readiness 
to  lade  on  board  his  ship. — Per  Curiam. — Decree  the  policy  to  be  delivered 
up  to  be  cancelled. 

In  another  case  of  Le  Pypre  v.  Farr.,  {b)  which  was  a  policy  of  insurance 
on  goods  by  agreement,  valued  at  600/.,  and  the  assured  not  to  be  obliged  to 
prove  any  interest  j  the  Lord  Chancellor  ordered  the  defendant  to  discover  what 
goods  he  had  on  board;  for,  although  the  defendant  offered  to  renounce  all 
interest  to  the  assurers,  yet  it  must  be  referred  to  the  master,  to  examine  the 
value  of  the  goods  saved,  and  to  deduct  it  out  of  the  value  or  sum  of  600/.,  at 
which  the  goods  were  valued  by  the  agreement.  And  by  this  decision,  the 
Court  held  that  the  assured  was  only  to  recover  an  indemnity,  which  is  the 
true  intent  and  tneaning  of  the  contract. 

But,  notwithstanding  the  proper  and  legitimate  view  the  Courts  of  Justice 
took  of  these  descriptions  of  policies — the  practice  still  continued  of  not  con- 
fining the  insurance  to  real  *risks,  and  in  the  departing  entirely  ^  ^„„  -, 
from  the  spirit  of  the  contract  of  insurance,  which  instrument,  for  L  -' 

the  protection  of  trade,  had _y?rs^  been  introduced,  bad  and  dishonest  men  began 
to  endeavour  to  make  themselves  fortunes  at  once,  by  means  of  perverting  the 
design  and  utility  of  this  contract,  which  ought  by  law  to  be  confined  to  the 
real  and  serious  risks,  which  were  to  be  endured  by  merchants  in  fair  deal- 
ing in  trade,  and  where  the  assurer  for  a  sufficient  considenttion,  the  premium, 
took  upon  him  the  assurecVs  risk,  the  practice  which  began  to  spring  up  after 
the  Revolution  of  insuring  ideal  risks,  grew  to  such  a  ptch,  that  the  Legislature 
at  length  considered  it  fit  to  interpose,  and  by  an  act  of  the  Parliament  to  stay 
this  dangerous  mode  of  trade,  and  to  give  it  an  effectual  check,  and  by  strong 
restrictive  rules,  to  settle  what  "interest"  a  merchant  should  by  the  statute  lata 
be  required  to  have,  in  order  to  be  allowed  to  recover  what  he  was  alone  enti- 
tled to,  a  fair  indemnify  for  his  loss,  from  die  persons  who  had  undertaken 
upon  themselves  his  risk. 

Accordingly  an  act  of  19  Geo.  2,  c.  37,  was  passed,  intituled  "an  act  to 
regulate  insurances  on  ships  belonging  to  subjects  of  Great  Britain,  and  on  mer- 
chandises or  effects  laden  thereon." 

"Whereas  it  hath  been  found  by  experience,  that  the  making  assurances 
'interest  or  no  interest,'  or  without  further  proof  of  interest  than  the  policy, 
hath  been  productive  of  many  pernicious  practices,  whereby  great  number  of 
ships,  with  their  cargoes,  have  either  been  fraudulently  lost  or  destroyed,  or 
taken  by  the  enemy  in  time  of  war ;  and  such  assurances  have  encouraged  the 
exportation  of  wool,  and  the  carrying  on  many  other  prohibited  and  clandestine 
trades,  which  by  means  of  such  assurances  have  been  concealed,  and  the  per- 
sons concerned  secure  from  loss,  as  well  to  the  diminution  of  the  public  revenue, 


(6)  2  Vern.  716. 


18  UPON    ANY    KIND    OF    GOODS   AND    MERCHANDISES. 

as  to  the  great  detriment  of  traders ;  and  by  introducing  a  mischievous  kind  of 
gaming  or  wagering,  under  the  pretence  of  assuring  the  risk  on  shipping  and 
fair  trade,  the  institution  and  laudable  design  of  making  assurances  hath  been 
r  *Qi  -.perverted;  and  which  was  intended  for  the  encouragement  *of  trade 
L  J  and  navigation,  has  in  many  instances  been  hurtful  of,  and  destruc- 

tive to  the  same. 

"  For  remedy  whereof  be  it  enacted,  that  no  assurance  or  assurances  shall 
be  made  by  any  person  or  persons,  bodies  corporate,  or  politic,  on  any  sliip  or 
ships  belonging  to  his  Majesty,  or  any  of  his  subjects,  or  on  any  'goods,  mer- 
chandises, or  effects,'  laden  or  to  be  laden  on  board  of  any  such  ship  or  ships, 
^interest  or  no  interest,''  or  without  further  proof  of  interest  than  the  policy, 
or  by  Avay  of  gaming  or  wagering,  or  without  benefit  of  salvage  to  the  assurer, 
and  that  every  such  insurance  shall  be  null  and  void.  («) 

"That  assurance  on  private  ships  of  war,  fitted  out  by  any  of  his  Majesty's 
subjects,  solely  to  cruise  against  his  Majesty's  enemies,  may  be  made  by  the 
owners  thereof,  interest  or  no  interest,  free  of  average,  and  without  benefit  of 
salvage  to  the  assurer  :  anything  herein  contained  to  the  contrary  thereof  in 
anywise  notwithstanding.  (6) 

"That  any  merchandises  or  effects  from  any  ports  or  places  in  Europe  or 
America,  in  the  possession  of  Spain  or  Portugal  may  be  assured  in  such  way 
and  manner  as  if  this  act  had  not  been  made,  (c) 

"That  all  and  every  sum  and  sums  of  money  to  be  lent  on  bottomry  or  at 
respondentia,  upon  any  ship  or  ships  belonging  to  any  of  his  Majesty's  subjects, 
bound  to  or  from  the  East  Indies,  shall  be  lent  only  on  the  ship,  or  on  the 
merchandises,  or  effects  laden,  or  to  be  laden  on  board  of  such  ship,  and  shall 
be  so  expressed  in  the  condition  of  the  bond  ;  and  the  benefit  of  salvage  shall 
be  allowed  to  the  lender,  his  agents  or  assigns,  who  alone  shall  have  a  right 
to  make  assurance  on  the  money  so  lent :  and  no  borrower  of  money  on  bot- 
tomry or  respondentia,  as  aforesaid,  shall  recover  more  on  any  assurance 
than  the  value  of  the  ship  or  of  the  merchandises  or  effects  laden  on  board 
such  ship,  exchmve  of  the  money  so  borroived ;  and  in  case  it  shall  appear 
that  the  value  of  his  share  of  the  ship,  or  in  the  merchandises  or  effects  laden 
r  *qo  ~\  on  boar^,  doth  not  amount  to  the  fidl  stem  or  *sums  he  had  bor- 
L  J  rotved  as  aforesaid,  such  borrower  shall  be  responsible  to  so  much 

of  the  money  borrowed  as  he  hath  not  laid  out  on  the  ship  or  merchandise 
laden  thereon,  with  lawfuiinterest  for  the  same,  together  with  the  assurance  and 
all  other  charges  thereon,  in  the  proportion  the  money  not  laid  out  shall  bear  to 
the  whole  money  lent,  notwi'hstanding  the  ship  and  merchandise  be  totally 
lost."  (a)  Upon  the  last  section  it  is  observable  that  no7ze  but  the  lender  shall 
have  a  right  to  make  insurance  ok  the  money  lent.  It  is  also  to  be  observed, 
that  this  regulation  of  insurance  on  bottomry  or  respondentia,  extends  only  to 
East  India  ships :  and,  therefore,  an  insurance  of  a  respondentia  interest  upon 
any  other  ship,  may  be  made  in  the  same  manner  as  they  used  to  be  before 
this  act. 

It  has  been  decided  upon  this  clause  of  the  act,  tliat  it  never  meant,  or  in- 
tended to  make,  any  alteration  in  the  manner  of  insurances  ;  and  it  was  declared 
by  the  Court,  in  Glover  v.  Black,  before  referred  to,  [b)  that  the  established 
law  and  usage  of  merchants  was,  that  respondentia  and  bottomry  must  be  speci- 
fied I)y  name  in  the  policy  of  insurance. 

By  the  first  section  of  the  act,  all  policies  of  insurance  made  contrary  to  it 
are  absolutely  void,  and  of  no  effect. 

(a)  Sect.  1.  (6)  Sect.  2. 

(c)  Sect.  3.  (a)  Sec.  5. 

lb)  Ante,  p.  15. 


UPON    ANY    KIND    OF    G00D3    AND    MERCHANDISES.  19 

I  proceed  now  to  consider,  Jir>it,  the  cases  which  have,  by  the  decisions  of 
the  Courts  upon  this  act,  been  hold  not  to  fall  within  the  description. 

The  19  Geo.  2,  c.  37,  does  not  extend  to  insurances  on  foreign  property^ 
for  in  fact  they  do  not  come  within  the  tvorcls  of  the  statute.  This  point  has 
also  been  set  at  rest  by  several  decisions  in  the  courts  of  law,  7'helluson  v. 
Fletcher  ;  (r)  and  it  was  much  discussed  in  the  case  of  Craufurdv.  Hunter,  (il) 
In  this  case  one  question  was,  the  insurance  being  in  Butch  prize  ships, 
whether  a  count  in  the  declaration  averring  that  the  plaintiffs,  as  commissioners 
for  the  disposal  of  Dutch  ships  and  effects,  made  the  ^insurance,  r-     ^  -, 

and  that  the  said  ships,  or  any  of  them,  were  not  belonging  to  ^  J 

his  Majesty,  or  any  of  his  sid)jects,  was  good.     The  point  was  argued  on 
demurrer. 

Lord  Kenyon. — "This  question  depends  on  the  construction  of  the  statute 
19  Geo.  2,  c.  37  ;  for,  notwithstanding  the  argument,  I  think,  at  common  laiv, 
a  person  might  insure  without  having  any  interest ;  but  the  preamble  and  the 
enacting  clause  remove  all  doubt  :  for  the  act  recites  the  mischief  and  incon- 
veniences that  had  arisen  from  making  assurances  '  interest  or  no  interest,'  and 
then  it  enacts  (not  declaring)  that  no  such  assurance  shall  be  made,  except  in 
certain  cases,  which,  for  very  wise  and  politic  reasons,  were  excepted.  There- 
fore I  am  satisfied  that  this  count  is  good,  unless  on  an  insurance  prohibited  by 
the  statute.  But  that  statute  only  applies  to  ships  belonging  to  his  Majesty  or 
any  of  his  subjects,  and  does  not  extend  to  foreign  ships." 

In  the  recent  case  of  Sutherland  v.  Pratt,  (a)  the  declaration  stated,  "that 
the  plaintiff  caused  to  be  made  a  policy  of  insurance,  purporting  thereby  and 
containing  therein  that  Messrs.  Boggs,  Taylor  Sl  Co.,  as  well  in  their  own 
names  as  in  the  name,  &c.,  did  make  an  assurance,  and  cause  themselves  to  be 
assured,  with  the  General  Marine  Insurance  Company,  'lost  or  not  lost,'  at 
and  from  Bombay  to  London,  upon  any  kind  of  goods,  &;c.,  &c.,  and  begin- 
ning the  adventure  from  the  loading  of  said  goods  on  board  the  said  ship,  and 
until  the  same  should  be  there  discharged  and  safely  landed.  The  insurance 
was  declared  to  be  on  300  bales  of  cotton.  The  declaration  went  on  in  the 
ordinary  form,  and  then  averred  that  the  said  goods  Avere,  on  1st  September, 
1841,  shipped  at  Bombay,  on  the  said  voyage;  that  the  plaintiff  was,  during 
the  said  voyage,  interested  in  the  said  goods  in  the  said  policy  mentioned,  and 
laden  on  board  the  said  ship,  to  the  amount  insured ;  that  the  said  insurance 
was  made/or  the  use  and  benefit  and  on  the  account  of  the  plaintiff  as  afore- 
said ;  that  the  said  ship  afterwards  sailed  on  the  said  voyage,  and  being  injured 
by  tempestuous  weather,  ^whereby  the  said  goods  were  wetted  and  p  ^„  .  -, 
damaged,  and  rendered  of  no  use  or  value  to  the  plaintiff.  L  J 

The  eighth  plea,  after  stating  "  that  though  the  said  ship,  with  the  said  goods 
on  board,  departed  and  set  sail  upon  the  said  voyage  from  Bombay  to  London, 
and  although  the  said  goods  were  damaged  and  diminished  in  use  and  value  on 
the  said  voyage  ;  and  although,  after  the  commencement  and  during  the  course 
of  the  said  voyage,  and  after  the  ship  had  sailed  on  the  said  voyage  for  divers 
days,  to  wit,  thirty-five  days  ;  and  for  divers  miles,  to  wit,  1000  miles,  the 
plaintiff  acquired  an  interest  in  the  said  goods,  and  then,  to  wit,  on  the  10th 
day  of  September,  1841,  became  and  was  interested  in  the  said  goods,  to  wit, 
to  the  value  and  amount  in  that  behalf  mentioned ;  nevertheless  that  the  said 
goods  were  so  damaged  and  diminished  in  value,  as  in  the  declaration  mentioned, 
before  the  -plaintiff  acquired  or  had  any  interest  therein.'"     To  this  plea  the 


(c)  Doug.  315. 

(6?)  8  T.  R.  13,  and  see  Lucena  v.  Craufurd,  1  Tauiit.  325,  referred  to  at  ante  p.  7. 

(a)   11  M.  &  W.  296. 


20  UPON    ANY    KIND    OF    GOODS    AND    MERCHANDISES. 

plaintiff  demurred  generally.  Martin,  the  counsel  for  the  plaintiff,  in  support 
of  the  demurrer,  said  the  question  of  substance  which  had  arisen  on  the  demur 
rer  was,  whether  it  loas  legal  to  enter  into  such  a  contract  of  insurance  as  is 
mentioned  in  the  eighth  plea.^  This  M^as  a  case  of  a  policy  of  goods,  "lost 
or  not  lost,"  at  and  from  Bombay  to  London,  beginning  the  adventure  from 
the  lading  of  the  goods  on  board  the  ship  till  their  arrival  and  safe  discharge  in 
London.  The  defendants,  therefore,  expressh/  contract  to  the  plaintiff  to  be 
responsible  to  the  plaintiff  from  the  loading  of  the  goods  at  Bombay,  till  their 
arrival  and  safe  discharge  at  I^ondon.  The  plaintifl'  is  admitted  by  the  plea  to 
have  become  interested  in  the  goods  during  the  voyage,  and  the  defendants 
have  engaged  to  become  responsible  to  him  for  any  loss  they  have  sustained 
during  the  entire  course  of  that  voyage.  Why  are  they  not  to  be  held  to  their 
contract  ?  At  the  common  knv  a  contract  of  insurance  was  legal,  tvifhout 
any  interest  in  the  assured.  Craifurd  v.  Hunter,  (a)  confirmed  by  the  Court 
[-  *qri  -)  of  Exchequer  Chamber  in  Ireland,  in  the  case  of  the  British 
\-     ^  J  ^fissurance  ^Company  v.  Magee.  (a)     Is  there,  then,  anything  in 

the  statute  19  Geo.  2,  c.  37,  to  affect  this  case  .^  That  statute  enacts,  "that 
no  assurance  shall  be  made  on  any  British  ship,  or  any  'goods,  merchandises, 
or  effects,'  laden  on  board  of  any  such  ship  or  ships,  'interest  or  no  interest,' 
or  without  further  proof  of  interest  than  the  policy,  or  by  way  of  gaming  or 
wagering,  or  without  benefit  of  salvage."  This  is  not  a  case  where  there  is  no 
proof  of  interest  than  the  policy,  nor  is  it  a  case  of  "gaming  or  wagering." 
The  plaintiff  has  the  interest  of  a  pledgee,  and  to  protect  himself  against  loss, 
as  such  makes  an  assurance :  there  is  nothing  illegal  in  that  either  at  common 
law  or  by  the  statute.  He  had  the  greatest  possible  interest  in  the  arrival  of 
the  goods  in  the  condition  in  which  he  supposed  them  to  be,  when  he  made  the 
advance  on  them  so  as  to  secure  him  from  loss.  Judgment  was  given  for  the 
plaintiff  on  the  demurrer,  as  we  have  already  seen  in  Section  II.  [b) 

In  the  above  case  the  defendants  pleaded,  in  the  first  place,  non  assumpsit ; 
upon  which  issue  was  joined,  and  was  tried  before  Lord  Abinger,  C.  B.,  Sit. 
after  Trin.  Term,  1843.  At  the  trial,  it  appeared  that  the  insurance  in  ques- 
tion, (c)  had  been  made  by  Boggs,  Taylor  &  Co.,  who  were  the  consignees 
of  tlie  goods  in  question,  for  the  security  of  the  plaintiff,  to  whom  they  had 
pledged  the  bill  of  lading,  which  was  indorsed  generally  to  bearer,  as  a 
security  for  certain  bills  of  exchange  accepted  by  the  plaintiff  for  the  accom- 
modation of  Boggs,  Taylor  &  Co.,  and  which  the  plaintiff  refused  to  accept 
until  Boggs,  Taylor  &  Co.  had  made  the  insurance  in  question,  and  deposited 
the  policy  with  liim.  It  was  contended  for  the  defendants,  that  this  was  not 
sufficient  to  entitle  the  plaintiff  to  sue,  in  his  own  name,  on  the  policy.  The 
Lord  Chief  Baron  overruled  the  objection,  and  a  verdict  was  given  for  the 
plaintiff. 

r     -Qft      1      ^^^  ^^  Term  following,  a  rule  for  a  new  trial  was  moved  *for, 
L  J  on  the  ground  of  misdirection,  (a)     The  counsel  for  the  defend- 

ants contended  that  a  mere  pawnee  of  a  policy  of  insurance  cannot  sue  in  his 
own  name. 

Parke,  B. — "Or  rather  whether  the  pawnee  of  goods  assigned  to  him  by 
the  indorsement  of  the  bill  of  lading  can  insure  them?" 

The  counsel  for  the  defendants  contended  that,  if  Boggs,  Taylor  &  Co. 
intended,  in  case  they  paid  off  the  acceptances,  to  have  the  right  in  their  own 


(a)  8  T.  R.  13.  (a)  Cooke  &  Alcock,  182. 

(/>)   Ante.,  p.  12. 

(c)  Sec  the  declaration  in  the  last  case,  ante,  p.  12. 

(«)    12  M.  &.  W.  16. 


tIPON    ANY    KIND    OF    GOODS    AND    MERCHANDISES.  21 

names  to  sue,  they  could  not,  by  depositing  with  the  plaintiff,  vest  the  right  to 
sue  in  him. 

Parke,  B. — "The  question  is  one  of  fact — whether  the  insurance  was  not 
made  for  securing  the  interest  of  the  plaintiff?" 

Parke,  B. — "If,  before  any  arrangement  with  the  plaintiff,  Boggs,  Taylor 
&  Co.,  had  insured  the  goods,  and  then  had  agreed  for  the  deposit  of  the  bill 
of  lading  and  the  policy  with  him,  I  agree  they  would  have  been  the  persons 
to  sue;  but  here  it  was  a  question  for  the  jury,  'whether  the  insurance  was 
not  made  by  them  as  agents,  and  for  the  benefit  of  the  plaintiff?'  " 

Lord  Minger,  C.  B. — "The  evidence  was,  he  refused  to  accept  till  they 
had  made  the  insurance.  In  such  a  case,  if  the  party  cannot  sue  in  his  own 
name,  how  can  he  have  the  benefit  of  the  pledge?" 

Parke,  B. — "It  seems  to  turn  entirely  on  a  question  of  fact;  and  there  is 
very  good  evidence  that  the  policy  was  made  for  the  benefit  of  the  plaintiff, 
to  cover  his  interest  in  the  goods;  and  it  is  clear  he  had  an  insurable  interest." 

Per  Curiam. — Rule  refused. 

But  in  the  case  of  Poii'ks  and  others  v.  Lines  (h)  it  was  decided,  that  where 
a  person  has  assigned  away  his  interest  in  a  ship  or  goods,  after  making  a  policy 
of  insurance  upon  them,  he  cannot  sue  upon  the  policy,  except  as  a  trustee  for 
the  assignee,  in  a  case  where  the  policy  is  handed  over  to  *him  ^  ^„_  -, 
upon  the  assignment,  or  there  is  an  agreement  that  it  shall  be  kept  L  J 

alive  for  his  benefit 

It  has  been  quite  settled  that  a  valued  policy  is  not  a  wager-policy,  though 
there  existed  at  one  time  a  litde  confusion  in  the  minds  of  some  about  the  two 
descriptions,  which,  however,  has  been  cleared  away  by  the  lucid  explanation 
of  the  difference  between  the  two  by  Lord  Mansfield,  Lord  Kenyan,  and  others 
of  the  Judges. 

In  the  important  case  of  Lenns  and  Another  v.  Eucker,  {a)  Lord  Mansfield, 
delivering  the  resolution  of  the  Court  upon  the  whole  case,  says, — "The 
second  objection  with  which  this  case  has  been  much  entangled  is  taken  from 
this  being  a  valued  policy.  I  am  a  little  at  a  loss  to  apply  the  arguments  drawn 
from  thence.  It  is  said  'that  a  valued  is  a  to  a  ger  policy''  (like  'interest  or  no 
interest,')  if  so,  there  can  be  no  average  loss,  and  the  assured  can  only  recover 
as  for  a  total,  abandoning  what  is  saved,  because  the  value  specified  is  ficti- 
tious." A  valued  policy  is  not  to  be  considered  as  a  wager  policy,  or  like 
'  interest  or  no  interest;'  if  it  was,  it  would  be  void  by  the  act,  19  Geo.  2,  c. 
37.  The  onlv  effect  of  the  valuation  is  fixing  the  amount  of  the  prime  cost, 
just  as  if  the  parties  admitted  it  at  the  trial ;  but  in  every  argument,  and  for 
every  other  purpose,  it  must  be  taken  that  the  value  was  fixed  in  such  a  manner 
as  tliat  the  assured  only  meant  to  have  an  indemnity.  If  it  be  undervalued,  the 
merchant  himself  stands  assurer  of  the  surplus.  If  it  be  much  overvalued,  it 
must  be  done  with  a  bad  view :  either  to  gain,  contrary  to  the  act  of  the  late 
king,  or  with  some  view  to  a  fraudulent  loss.  And,  therefore,  the  assured  never 
can  be  allowed  in  a  Court  of  Justice  to  plead  tliat  he  has  greaUy  overvalued, 
or  that  his  interest  was  a  trifle  only.  It  is  settled  '  that,  upon  valued  policies, 
the  merchant  need  only  prove  some  interest,  to  take  it  out  of  the  19  Geo.  2, 
because  the  adverse  party  has  admitted  the  value,  and  if  more  was  required, 
the  agreed  valuations  would  signify  nothing;'  but,  *if  it  should  p  ^gg  -■ 
come  out  in  proof  that  a  man  had  insured  2000/.,  and  had  interest  L  -■ 

to  the  value  of  a  cable  only,  there  never  has  been,  and  I  believe  there  never 
will  be,  a  determination  that,  by  such  an  evasion,  the  act  of  Parliament  may 
be  defeated.     There  are  many  conveniences  from  allowing  valued  policies,  but 


(6)  Ante,  p.  8.  (a)  2  Burr.  1170. 


22  UPON    ANY    KIND    OF    GOODS    AND    MERCHANDISES. 

where  they  are  used  merely  as  a  cover  to  a  wager,  they  would  be  considered 
as  an  evasion.  The  eflect  of  the  valuation  is  only  fixing  conclusively  the 
prime  cost.  If  it  be  an  open  policy,  the  prime  cost  must  be  proved — in  a 
valued  policy  it  is  agreed,  (a)  To  argue  "tliat  there  can  be  no  adjustment  of 
an  average  loss  upon  a  valued  policy,"  is  directly  contrary  to  the  very  terms 
of  the  policy  itself.  It  is  expressly  subject  to  average,  if  the  loss  upon  sugars 
exceed  6  per  cent.;  if  it  was  not,  the  consequence  would  not  be  that  every  par- 
tial loss  must  thereby  become  total,  but  the  event,  to  entitle  the  assured  to 
recover,  would  not  happen,  vnless  there  was  a  total  loss.  Consequently  the 
plaintiffs  in  this  case  would  not  be  entided  to  recover  at  all ;  for  there  is  no 
colour  to  say  this  was  a  total  loss.  Besides,  the  plaintiffs  have  taken  to  the 
goods,  and  sold  them. 

Eighthly,  profits  expected  to  be  made  are  a  "good  insurable  interest."  The 
doctrine  laid  down  by  Lord  Mansfield  in  the  above  case  was  acted  upon  by  his 
Lordship  in  a  subsequent  case  of  Grant  v.  Parkinson,  {h)  It  Avas  an  action 
on  a  policy  of  insurance  on  the  ship  Providence,  "at  and  from  Surinam,  or 
whatsoever  other  ports  in  the  West  Indies  at  which  the  ship  might  load,  to 
Quebec.'"  At  the  trial,  before  Lord  Mansfield,  at  the  Sit.  after  Trin.  Term,  the 
principal  question  on  the  merits  was,  whether  the  plaintiff  had  an  insurable 
interest.  It  was  an  insurance  on  the  profits  expected  to  arise  on  a  cargo  of 
molasses,  belonging  to  the  plaintiff,  who  had  a  contract  with  Government  to 
r  v^qn  1  supply  the  ^army  with  spruce  beer.  Lord  Mansfield  thought  it 
L  J  an  insurable  interest.     But  the  part  of  the  case  which  calls  for  our 

attention  at  present  was  a  clause  declaring  "that,  in  the  case  of  loss,  it  was 
agreed  that  the  profits  should  be  valued  at  1000/.,  without  any  other  voucher 
than  the  policy."  This,  it  was  insisted,  rendered  the  policy  void,  within  the 
spirit  of  the  19  Geo.  2,  c.  37.  Lord  Mansfield,  at  the  trial,  inclined  to  think 
the  contract  was  a  fair  one ;  but  still  he  could  not  get  over  the  objection,  the 
instrument  being  void  on  the  face  of  it.  His  Lordship,  however,  saved  the 
point  for  the  opinion  of  the  Court,  a  verdict  being  entered  for  the  plaintiff,  sub- 
ject to  that  reference.  In  Michaelmas  Term  following  the  matter  came  on  to 
be  heard,  when,  after /?<//  argument  at  the  Bur, 

Lord  Mansfield,  C.  J.,  said. — "I  have,  since  the  shting  at  Guildhall,  on 
further  consideration,  changed  my  opinion.  I  then  thought  the  present  policy 
within  the  act  of  Parliament,  I  now  think  otherwise.  On  the  construction 
of  the  act,  it  has  uniformly  been  held  that  a  valued  policy  is  not  void.  It 
is  incumbent  on  the  plaintiff  to  prove  some  interest,  but  it  is  not  necessary 
to  go  into  the  ivhole  value.  In  the  case  of  Lewis  v.  Pucker,  [a)  this  doctrine 
was  much  considered.  (His  liordship  read  the  words  already  mentioned  in 
that  case,  and  proceeded.)  This  insurance  is  on  "the  profits"  of  a  cargo 
belonging  to  a  man  having  a  contract  to  supply  the  army,  and  if  it  arrive  the 
profits  are  pretty  certain.  The  meaning  of  the  policy  is  not  to  evade  the  act 
of  Parliament,  but  to  avoid  the  difficulty  of  going  into  an  exact  account  of  the 
quantum.  I  cannot  distinguish  this  from  a  valued  policy  :  there  is  no  pretence 
for  saying  it  is  a  ivagering  one." 

The  otlier  Judges  concurred,  and  the  postea  was  given  to  the  plaintifi'. 

If  the  plaintifi"  must  prove  his  interest,  and  the  policy  only  saves  him  the 
trouble  of  shoiving  its  amount,  it  is  a  valued  policy  and  good;  but  if  it 
dispenses  with  all  proof  of  interest,  it  is  within  the  act  and  void.     Thus  in 


(n)  By  the  usage  at  Lloyd's  whore  liberty  is  given  by  the  policy  "to  declare  and  value" 
after  the  policy  is  executed,  and  no  declaration  or  valuation,  it  is  considered  as  an  open 
policy.     2  B.  &  Ad.  051.      And  see  Harrnan  and  others  v.  Kingston,  3  Camp.  150. 

(/j)  22  Geo.  3,  in  B.  R.  Mich.  Park  Ins.  561. 

(a)  Ante,  p.  37. 


UPON    ANY    KIND    OF    GOODS    AND    MERCHANDISES.  23 

the  case  of  Mxirphy  v.  Bell,  {h)  where  a  policy  of  insurance  stipulated,  '"that 
the  *goo(ls  insured  Avere,  and  should  be  valued  at  five  tierces  of  p  ^ .  „  -, 
coflee,  valued  at  27/.  per  tierce,  say  135/. ;  tlie  policy  to  be  a  sufli-  L  J 

cient  proof  of  interest,"  it  was  held  that  tlie  policy  was  void  under  the  act. 
Best,  Vy.  J.,  said,  "This  is  a  full  admission  of  all  which  the  assured  would 
be  required  to  prove,  as  well  as  to  his  having  goods  on  board,  as  to  the  value 
of  those  goods.  The  words  'should  be  valued  at  five  tierces  of  coflee,'  admit 
that  five  tierces  of  coflee  belonging  to  him  were  on  board.  That  would  dis- 
pense with  the  necessity  of  proving  that  any  coflee  belonging  to  the  plaintiff' 
was  on  board.  The  words  'the  policy  to  be  deemed  suflicient  proof  of  inter- 
est,' are  of  precisely  the  same  import  as  the  words  'Avithout  further  proof  of 
interest  than  the  policy.'  As  no  inquiry  is  to  be  made  whether  the  assured 
had  any  property  in  the  ship  insured  or  not,  it  is  in  eflject  an  insurance  'interest 
or  no  interest.' 

In  a  case  before  Lord  Kenyon,  (a)  where  the  interest  was  stated  in  the  policy 
to  be  "on  the  commissions  of  the  plaintiff,  as  consignee  of  the  cargo,  valued 
at  1500/."  His  Lordship  expressed  a  strong  opinion  that  this  was  a  good 
insurable  interest,  but  the  matter  being  compromised,  it  did  not  come  to  any 
decision.  Afterwards  the  question  was  brought  for  the  opinion  of  the  Court 
upon  a  case  reserved,  {b)  The  policy  stated  the  insurance  to  be  on  profits 
valued  at  2,000/.  The  declaration  averred,  and  the  fact  was,  that  the  assured 
was  interested  in  the  profits  to  arise,  and  be  made,  from  the  sale  and  disposal 
of  the  said  cars;o  of  goods.  This  case  was  twice  argued  at  the  Bar,  once  in 
the  time  of  liord  Kenyan,  and  after  taking  time  to  deliberate  the  judgment  of  Mr. 
J.  Grose,  Mr.  .1.  Le  Blanc,  and  himself,  was  delivered  by  Mr.  J.  Lawrence, 
in  a  luminous  manner,  who  declared  at  the  close  of  it,  that  Lord  Kenyan  con- 
curred in  the  judgment.  The  decision  was,  that  such  profits  were  the  subject 
of  insurance,  Mr.  J.  Lawrence  in  this  judgment,  refers  largely  to  the  foreign 
writers  on  this  subject. 

*The  case  states,  that  the  insured  shipped  on  board  the  ship  r  s;^,  -i 
Jonah  a  cargo  of  goods,  to  be  carried  on  a  trading  voyage  :  so  L  -^ 

that  it  appears  that  he  had  an  interest  in  the  profits  to  arise  from  a  cargo,  which 
was  liable  to  be  affected  by  the  perils  insured  against.  And  the  question  is. 
if,  on  an  insurance  made  on  the  profits  to  arise  from  such  cargo,  the  plaintiff* 
can  recover?  As  insurance  is  a  contract  of  indemnity,  it  cannot  be  said  to  be 
extended  beyond  what  the  design  of  such  species  of  contract  will  embrace,  if 
it  be  applied  to  protect  men  from  those  losses  and  disadvantages  which,  but  for 
the  perils  insured  against,  the  assured  would  not  suffer;  and  in  every  maritime 
adventure  die  adventurer  is  liable  to  be  deprived  not  only  of  the  thing  imme- 
diately subjected  to  the  perils  insured  against,  but  also  of  the  advantages  to 
arise  from  the  arrival  of  those  things  at  their  destined  port.  If  they  do  not 
arrive,  his  loss  in  such  case  is  not  merely  that  of  his  goods  or  other  things 
exposed  to  the  perils  of  navigation,  but  of  the  benefits  which,  were  his  money 
employed  in  an  undertaking  not  subject  to  the  perils,  he  might  obtain,  without 
more  risk  than  the  capital  itself  would  be  liable  to :  and  if,  when  the  capital 
is  subject  to  the  risks  of  maritime  commerce,  it  be  allowable  for  the  merchant 
to  protect  that  by  insuring  it,  why  may  he  not  protect  those  advantages  he  is 
in  danger  of  losing  by  their  being  subjected  to  the  same  risks.''  It  is  surely 
not  an  improper  encouragement  of  trade  to  provide  that  merchants,  in  case  of 
adverse  fortune,  should  not  only  not  lose  the  principal  adventure,  but  that  that 


(h)  4  Bing.  567. 

(a)  Flint  v.  Le  Mesurier,  sit.  after  H.  T.  1796,  at  Guild.  Park  Ins.  563. 

(b)  Barclay  v.  Cousins,  2  East.  544. 


84  UPON    ANY    KIND    OF    GOODS    AND    MERCHANDISES. 

principal  should  not,  in  consequence  of  such  bad  fortune,  be  totally  unproduc- 
tive ;  and  that  men  of  small  fortunes  should  be  encouraged  to  engage  in  com- 
merce, by  their  having  the  means  of  preserving  their  capitals  entire,  which 
would  continually  be  lessened  by  the  ordinary  expenses  of  living,  if  there  were 
no  means  of  replacing  that  expenditure,  in  case  the  returns  of  their  adventures 
should  fail.  Where  a  capital  is  employed  subject  to  such  risks,  in  case  of  loss, 
the  party  is  a  sufferer  by  not  having  used  his  money  in  a  way  which  might, 
r  *A9  "1  ^^^^'^  ^  moral  certainty,  have  made  a  return  not  only  of  his  princi- 
L  J  pal  *but  of  profit:  and  it  is  but  playing  with  words  to  say  that,  in 

such  case,  there  is  no  loss,  because  there  is  no  possession ;  and  that  it  is  but  a 
disappointment.     Foreign  writers  upon  insurance,  whose  doctrines  form  the 
greatest  part  of  our  law  on  this  suljject,  certainly  do  not  treat  of  insurance  on 
profits  as  a  matter  inconsistent  with  the  true  nature  and  design  of  such  a  con- 
tract 5  and  where  it  is  spoken  of  by  them  as  a  species  of  insurance  which  can- 
not be  made,  this  latter  doctrine  will  be  found  to  be  referable  to  the  positive 
institutions  of  difl^erent  nations,  who  have  tliought  it  wise  to  prohibit  it.     JRoc- 
cuSy  an  Italion  jurist,  inquiring  how  goods  that  are  lost  are  to  be  valued,  has 
in  his  Notabilia  de  Jhsecuratiomhus,   No.  3,  this  passage:   'Distingue  aut 
merces  fuerunt  aestimate  pro  certa  quantitate  tempore  contractus  assecurationis, 
et  tunc  non  sumus  in  dubia  quia  dicta  quantitas  ajstimata  solvendaest;  aut 
assecuratio  full  facta  pro  asportandis  mercibus  salvis  lioman,  et  time  sestimatio 
inspicienda  est  Roniae.     Aut  assecuratio  fuit  facta  siinplicifer,  de  solvendo 
sestimationem  sen  valorem  mercium,  in  casu  periculi,  si  navis  perierit,  et  tunc 
inspici  debet  tempus  obligationis,  et  prout  tunc  valebant,  debet  fieri  a^stimatio, 
et  sic  damnum  quod  assecuratus  patitur  in  amissione  rei,  non  lucrum  fascien- 
dum  consideratur."     And  for  this  lie  cites  Santerna^  a  Portuguese  lawyer,  de 
JlssecurcitionihuSy  part  the  3d,  num.  40  and  41  ;  in  which  book  there  is  along 
disquisition  to  show  that,  in  this  latter  case,  the  profit  on  the  goods  is  not  to 
be  paid,  but  only  the  value  at  the  time  of  the  insurance.     So  that  it  seems  the 
insurance  of  profit  is  so  fiir  from  being  inconsistent  with  the  nature  of  insu- 
rance, that,  e  contra,  Santerria  thinks  it  necessary  to  show  by  argument,  that 
the  profit  is  not  to  be  considered  in  all  cases ;  and  that  where  the  assurance  is 
made  simplicifer,  then  lucrum  non  spectatur.     And  S/racca,  another  Italian 
lawyer,  agrees  with  Sunternn  in  his  Gloss,  No.  6.     In  France  such  assurances 
were  unlawful;  but  tliat  depends,  according  to  ralin,  on  the  ordinance  of  the 
marine,  whicli  also  forbids  insurance  upon  freight;  and  the  reason  given  by 
r     *d'i      1  ^^<^^"^  ^^^'  niaking  these  ordinances.  Math  respect  to  the  one  and 
L  J  the  *other,  is  the  same;  so  in  Holland,  it  appears  from  Bynkcr- 

shoek^s  Quasstiones  Juris  Privati,  book  4,  c.  5,  that  such  insurances  cannot  be 
legally  made  there ;  but  that  is  by  the  positive  laws  of  that  country :  notwith- 
standing which,  the  practice  has  so  generally  obtained  to  insure  expected  profits, 
as  that  in  a  case  he  there  states,  the  majority  of  the  Judges  of  the  Court  where 
the  question  arose,  determined  in  favour  of  the  assured ;  and  those  who  op- 
posed that  decision,  rested  their  opinions  on  the  positive  laws  of  the  country, 
and  not  on  such  contracts  being  contrary  to  the  nature  of  insurance.  In  this 
country,  there  is  no  law  forbidding  such  insurance;  unless  it  could  be  shown 
that  tlie  insured  had  no  interest  in  the  profits,  or  that  from  its  nature  it  must  be 
a  mere  Avager,  so  as  to  bring  the  case  within  the  stat.  19  Geo.  2;  and  that 
they  are  not  considered  as  contracts  inconsistent  with  the  general  nature  of 
insurance  is  proved,  by  the  instan(;e  put  of  an  insurance  on  freight;  which,  as 
was  very  truly  argued  at  the  Bar,  differs  only  from  the  case  now  before  us  in 
the  same  degree  as  a  return  of  capital  vested  in  shipping  differs  from  a  return 
of  capital  vested  in  merchandise :  and  by  the  cases  of  Grant  v.  Parkinson,  in 
Marshall,  95,  3d  edit.;  and  Park.  5G1,  8th  edit.,  whieli  was  an  insurance  on 
profits  of  a  cargo  of  molasses ;  and  the  case  of  Henrickson  and  Walker,  and 


UPON   ANY    KIND    OF    GOODS    AND    MERCHANDISES.  25 

flenrickson  find  Margetson,  Mich.  1776.  («)  The  authority  *of  ^  ^  ,  .  -. 
Grant  and  Parkinson,  as  applied  to  this  case,  has  been  attempted  L  J 

to  be  gotten  rid  of  by  observing  that  the  thing  insured  there  was  the  profits  of 
a  specific  cargo :  but  in  that  respect  the  two  cases  do  not  differ ;  for  this  is  an 
insurance  on  a  specific  cargo ;  and  we  have  no  ground  to  say  that  the  profits  of 
a  cargo  to  be  exchanged  in  the  ./African  trade,  from  wliich  exchange  the  profits 
will  arise,  are  not,  to  use  the  expression  of  Lord  Mansfield  in  Grant  and  Far- 
kinson,  pretty  certain  j  admitting,  for  the  sake  of  the  argument,  which  it  is  not 
necessary  for  us  now  to  determine,  that  in  some  mercantile  adventures  there 
may  be  so  much  uncertainty  as  to  the  profits,  as  to  make  it  not  impossible  to 
insure  them  without  the  policy  being  a  wagering  contract.  This,  however,  we 
cannot  presume  of  the  returns  to  be  made  from  an  adventure  undertaken  accord- 
ing to  a  long  established  course  of  trade  like  that  in  question,  in  which  num- 
bers have  been  engaged  to  great  advantage  for  a  continued  succession  of  years. 
It  has  been  objected  to  this  sort  of  insurance,  that  the  subject  having  no  physi- 
cal existence,  cannot  be  insured.  This  objection  would  hold  against  insuring 
freight,  and  bottomry,  *and  respondentia  interest.  Again,  that  the  p  ^.^^  -, 
ffoods  miffht  be  goin^  to  a  losinor  market;   in   which  case,   the  •-  J 

assured  would  gain  by  the  loss  of  iiis  goods  ;  but  if  that  were  the  case,  it  would 
be  evidence  on  non  assumpsit,  as  it  would  prove  either  that  the  plaintift"  was 
not  damnified  as  to  profit  by  the  loss  of  the  goods ;  or  that  at  the  time  of  the 
loss,  he  had  no  interest  in  the  thing  insured.  It  was  further  objected,  that 
there  can  be  no  average  nor  abandonment;  but  that  objection  does  not  hold  in 
the  present  case ;  for  if  there  be  only  a  partial  loss,  the  assured  will  only  be 
liable  to  pay  for  the  expected  profits  on  the  goods  lost;  and  there  may  be  an 
abandonment  of  the  profits  by  abandoning  the  goods  from  whence  the  profits 
are  to  arise :  and  as  to  general  average,  there  would  be  no  difficulty  in  the  case 
of  a  valued  policy ;  and  in  the  case  of  an  open  policy,  the  difficulty  would  be 

(r/)  Mr.  Justice  Lawrence  read  the  following  note  of  that  case  at  the  time : 

Henrickson  v.  Margetson,  and  the  same  against  Walker.  These  were  two  actions  on 
the  same  policy,  against  two  different  underwriters.  It  was  a  policy  of  insurance  at  and 
from  Bordeaux  to  Hamburgh,  on  imaginary  profit.  The  declaration  stated  the  policy  14th 
December,  1775,  on  the  ship  Thomas,  of  Bremen,  on  indigo  valued  at  9,600/.;  under 
which  policy  was  a  memorandum,  viz:  the  following  is  on  imaginary  profit  at  85  per  cent., 
and  in  case  of  loss,  to  pay  without  further  proof  of  interest  than  this  policy.  The  plaintiff 
averred,  that  the  ship  was  not  a  ship  belonging  to  his  majesty,  or  any  of  his  subjects ;  and 
that  the  imaginary  profit  mentioned  in  the  said  memorandum  was,  and  is  understood  and 
meant  "to  be  the  profit  which  the  said  cargo  of  indigo  would  produce  upon  the  sale  thereof 
at  Hamburgh,  if  the  same  should  arrive  there  in  safety."  That  the  defendant  became  an 
assurer  of  200/.  on  the  said  imaginary  profit;  that  the  cargo  of  indigo  was  on  board  to  the 
value  insured;  "and  that  the  plaintiff  was  interested  in  the  cargo  of  indigo  and  the  imagi- 
nary profit  thereof;"  and  that  the  ship  and  cargo  were  on  the  voyage  lost,  by  the  perils  of  the 
sea;  and  the  cargo  and  all  profit  thereof  wholly  lost  to  the  plaintiff. 

The  cause  was  tried  at  the  sittings  after  Trinity  Term,  1776,  at  Guildhall,  before  Lord 
Mansfield,  when  a  verdict  was  found  for  the  plaintiff. 

In  Michaelmas  Term,  1 776,  a  motion  was  made  for  a  new  trial.  It  appeared  by  the 
report,  that  the  ship  was  totally  lost  off  Scily ;  but  that  all  the  cargo,  except  one  barrel  of 
indigo,  was  saved  and  carried  to  Hamburgh  in  another  ship,  at  the  expense  of  the  under- 
writers; and  the  question  made  on  the  motion  for  a  new  trial  was.  Whether  the  ship  being 
lost,  but  the  cargo  carried  to  Hamburgh  in  another  ship,  the  assured  could  recover  as  for  a 
total  loss  of  the  profits'?  But  the  Court  held,  that  there  should  not  be  a  new  trial;  that 
the  underwriters  were  not  at  liberty  to  send  the  cargo  to  Hamburgh  at  what  time  and  in  what 
ship  they  pleased.  Lord  Mansfidd  said,  the  meaning  of  the  policy  seems  to  be,  that  the 
ship  and  cargo  shall  arrive  at  the  destined  port,  and  is  on  the  profit  of  that  particular  ship 
and  cargo;  but  the  market  varies,  and  may  depend  on  twenty-four  hours  sooner  or  later,  so 
that  unless  the  very  ship  and  cargo  arrive,  the  profit  may  fail,  and  the  insurance  is  lost. — 
Rule  discharged. 


26  UPON   ANY    KIND    OF    GOODS    AND    MERCHANDISES. 

no  greater  tlran  in  ascertaining  the  damages  in  case  of  loss :  the  impossibility 
of  doing  which,  in  every  case,  will  not  prove  that  an  insurance  can  be  made 
on  profits  in  no  case.  A  considerable  time  has  elapsed  between  the  first  and 
second  argument  of  this  case,  in  consequence  of  a  writ  of  error  in  the  Exche- 
quer Cham!)er  in  another  case,  the  decision  of  which  might  have  had  weight 
in  favour  of  the  defendant,  had  it  been  determined  otherwise  than  it  has  been. 
The  grounds  of  that  decision  we  are  not  acquainted  with,  so  as  to  say  whether 
they  will  support  this  case :  but  as  that  determination  does  not  militate  with 
the  opinion  Mr.  J.  Grose,  Mr.  .1.  Lc  Blanc,  and  I  have  formed,  and  I  may 
add  that  of  liord  Kenyon  on  hearing  tlie  first  argument,  we  do  not  think  it 
fit  that  we  should  longer  delay  the  judgment  of  the  Court." — Postea  to  the 
plaintiff. 

In  the  case  of  Eyre  and  Another  v.  Glover,  [a)  which  was  an  action  on  a 
policy  of  assurance  in  the  common  printed  form,  on  a  voyage  from  Riga  to 
Hull,  upon  "goods,"  and  also  upon  the  body  of  the  ship  Elizabeth,  &c.,  it 
was  stated  "that  the  said  ship,  &c.,  goods  and  merchandises,  &;c.,  for  so  much 
as  concerned  the  assured  by  agreement  between  the  assured  and  assurers  in  the 
r  *4fi  1  P'^^^^J'  '''^^  ^^^^  shall  be  on  profits  *(without  further  description,) 
L  J  &c."     The  declaration,   after  setting  out  the  policy,  alleged  the 

promise  of  the  defendant  as  an  underwriter  thereon  for  200/.,  in  consideration 
of  forty  guineas  premium,  and  then  stated  that  the  ship  on  the  said  day  (the 
date  of  the  policy)  was  in  good  safety  at  Biga,  and  divers  goods  of  great  value 
were  then  loaded  on  board  her,  to  be  carried  on  the  voyage  insured,  and  that 
the  plaintifl's  were  then  and  from  thence  until  and  at  the  time  of  the  loss  after- 
mentioned,  interested  in  the  said  goods  and  in  the  profits  expected  to  be  made 
thereon,  to  the  amount  for  the  money  insured  on  the  said  goods  and  the  said 
profits  respectively ;  and  that  the  said  policy  was  made  on  the  said  profits,  and 
for  the  use  and  benefit  of  the  plaintifl's.  The  declaration  went  on  to  state, 
that  the  ship  sailed  on  a  certain  day,  &c.,  on  the  voyage  insured,  and  in  the 
course  of  the  same  voyage,  and  on  the  same  day,  was  captured  with  the  goods, 
(fee,  whereby,  &c.,  the  defendant  became  liable  to  pay  the  200/.  At  the  trial 
before  Lord  Elhnborough,  at  Guildhall,  it  appeared  that  the  plaintifl's  had 
chartered  the  Elizabeth  from  Hull  to  Riga,  to  receive  from  their  agents  a  full 
cargo  of  hemp,  and  at  the  time  of  the  capture  the  invoice  value  of  the  cargo 
was  5116/.,  the  profit  on  which,  supposing  the  whole  of  it  to  have  been  ship- 
ped, and  arrived  in  a  sound  state,  would  have  been  to  the  amount  insured — 
1000/.  An  objection  was  taken  at  the  trial  that  this  was  a  gambling  policy, 
and  tlierefore  void;  liut  JiOrd  Ellcnborough  overruled  the  objection,  seeing  no 
difl'erence,  in  principle,  between  an  insurance  on  profits  valued,  which  had 
been  held  to  be  legal,  and  on  profits  without  tlie  valuations  being  ascertained  in 
the  policy,  but  left  open  to  proof  afterwards — "id  certum  est  quod  certum  reddi 
potest;"  and  the  flax  must  be  taken  to  have  been  shipped  in  a  sound  state,  the 
contrary  not  appearing.  The  plaintiff's  having  recovered  a  verdict,  a  motion 
was  made  for  a  new  trial,  or  an  arrest  of  judgment,  on  the  grounds  that  profits 
generally,  wiUujut  more  certainty,  could  not  be  insured. 

[-     ^.         -,      Lord  Ellcnborough,  C.  J. — "Are  profits  anything  more  *than 
L  J  an  excressence  upon  the  value  of  the  goods,  beyond  the  prime  cost  ? 

Tiie  difficulty  of  calculation  cannot  affect  the  question  of  interest,  or  the  legal- 
ity of  the  contract." 

Rule  refused. 

8o  in  the  case  of  King  v.  Glover  (a)  the  Court  were  of  opinion  that  an 
African  captain,  who  was  entitled,  besides  his  wages,  to  so  much  per  cent., 

(a)   16  East,  218;  3  Camp.  276.  (a)  2  N.  R.  206. 


VPON    ANY    KIND    OF    GOODS    AND    MERCHANDISES.  27 

and  other  j^rivilejres,  for  his  trouble  of  buying  slaves  on  the  coast  of  Africa 
and  disposing  of  them  in  the  West  Indies,  had  a  good  insurable  interest  in  this 
remuneration. 

But,  in  order  to  enable  the  assured  to  recover  on  an  insurance  on  "profits," 
he  must  establish  in  evidence  that  he  has  sustained  a  loss  by  one  of  the  perils 
insured  against :  that  is,  he  must  show  that  if  the  peril  insured  against  had  not 
intercepted  the  profit,  that  profit  would  have  accrued  to  the  assured. 

And  therefore  in  the  case  of  Hodgson  v.  Glover,  [b]  where  a  valued  policy 
on  profits  was  made,  and  a  part  of  the  cargo  (slaves)  Avere  lost  by  shipwreck, 
ihouffh  the  remainder  were  brought  to  market  and  sold,  but  the  assured  did  not 
show  what  profit  was  made,  or,  if  all  the  slaves  had  arrived  at  the  market, 
there  would  have  been  any  profit,  it  being  only  stated  that  the  produce  of  the 
part  sold  did  not  give  a  profit  upon  the  whole  adventure,  the  assured  failed  to 
recover  in  the  action  for  want  of  proof  in  his  interest. 

Mr.  J.  Lmvrence  says  : — "According  to  the  plaintiff's  own  showing,  this 
is  only  an  average  loss.  The  case  of  Barclay  v.  Cousins,  (c)  did  not  go  the 
leno-th  of  directing  that  the  plaintifl"  was  at  all  events  cntided,  under  a  policy  on 
'profits,'  to  recover  to  the  full  extent  of  the  sum  insured.  What  was  there 
said  was  only  to  show  the  general  insurable  nature  of  profits." 

In  the  class  of  insurances  which  has  for  some  space  been  the  subject  of  our 
consideration  it  is  to  be  remarked  that,  although  the  subject-matter  of  the 
expected  profit  may  not  *have  an  existence  at  the  time  of  the  insu-  p  ^^g  -, 
ranee,  there  is,  however,  a  description  of  certainty  (distinct  from  L  -^ 

what  is  merely  a  speculative  expectation)  required  to  render  this  species  of  pro- 
perty insurable.  For  where  tlie  benefit  which  the  assured  expects  is  only  of  a 
speculative  nature,  attended  with  no  certainty  of  completion,  and  requiring  the 
event  he  wishes  to  be  insured  to  happen,  before  he  can  possibly  know  whether 
it  can  ever  come  to  pass,  is  considered  by  far  too  remote  an  interest  to  make 
the  subject  of  an  insurance,  and  not  sufliciently  palpable  to  take  the  case  out  of 
act  19  Geo.  2. 

The  following  case,  reported  by  the  late  Mr.  J.  Park,  in  his  Treatise,  is 
illustrative  of  the  general  proposition  just  laid  down  : — 

It  was  the  case  of  Knox  v.  Wood,  (a)  and  was  an  insurance  "  on  the  ship 
Friendship,  at  and  from  Bristol  to  St.  T7iomas''s  and  Jamaica,   and  from 
thence  back  to  Dublin,  on  commissions  valued  at  1,000/."     The  admitted  facts 
were,  that  the  plaintiff  and  one  Alexander  Robe,  of  Bristol,  merchant,  on  the 
26th  March,  1807,  entered  into  a  charter-party  for  the  voyage  in  question  : 
that  the  said  ship  sailed  from  Bristol  \v\i\\  a  cargo  for  St.  Thomas'' s,  but  which 
cargo  was  not  the  property  of  the  plaintiff,  nor  insured  by  this  policy  :  that  the 
said  ship  delivered  her  cargo  at  St.  Thomases,  and  proceeded  from  thence  in 
ballast  to  Jamaica,  and  was  captured  before  her  arrival  and  carried  into  Cuba, 
where  she  was  ransomed  by  tlie  captain,  and  again  proceeded  for  and  arrived  at 
Jamaica :  that  the  policy  in  question  was  meant  and  intended  by  the  plaintiff 
as  an  insurance  upon  the  commission  expected  to  arise  upon  the  sale  and  dis- 
position by  the  plaintiff  in  Dublin  of  produce  expected  to  be  shipped  on  board 
the  said  ship  at  Jamaica.     When  the  counsel  for  the  plaintiff  had  opened  this 
case.  Lord  Ellenborough  said,  "it  is  agreed  that  this  insurance  was  on  the 
commission  of  the  homeward  cargo  ;  and  it  is  also  agreed  that  the  vessel  arrived 
at  the  place  where  that  homeward  cargo  was  to  be  shipped,  and  no  reason  is 
assigned  why  it  was  not  shipped.      No  cargo  appears  to  have  been  p     ^.^      -, 
ready.     *This  is  an  insurance  of  an  expectation  of  an  expectation.  ^  J 


(6)  6  East,  316.  (c)  Ante,  p.  40. 

(a)  Mich.  sit.  at  Guild.  1808.     Park  Ins.  vol.  2,  564. 


28  UPON    ANY    KIND    OF    GOODS    AND    MERCHANDISES. 

If  Courts  of  Justice  were  to  give  effect  to  insurances  of  this  kind,  they  had  at 
once  better  repeal  the  statute  against  wager-policies.  The  plaintiff  was  non- 
suited. A  motion  was,  in  the  following  Term,  made  to  set  aside  the  nonsuit, 
which  was  refused  by  the  whole  Court,  (a) 

A  similar  doctrine  to  the  above  was  held  in  a  late  case  of  Slockdah  v.  Dun- 
lop,  in  the  Exchequer  of  Pleas,  (6)  in  which  Messrs.  Harrison  &  Co.,  being 
the  owners  of  two  ships,  called  the  Jintelope  and  the  Maria,  trading  to  the 
coast  of  Africa,  and  which  were  expected  to  arrive  at  Liverpool  with  cargoes 
of  palm-oil,  agreed  verbally  with  the  assuied  to  sell  them  two  hundred  tons  of 
oil,  "one  hundred  tons  to  arrive  by  the  Antelope  and  one  hundred  by  the 
Maria.''''  The  Antelope  afterwards  arrives  with  one  hundred  tons  of  oil  on 
board,  which  were  delivered  to  the  plaintiffs.  The  Maria,  having  fifty  tons, 
\vas  lost  "by  the  perils  of  the  seas."  The  plaintiffs  having  insured  the  oil  on 
board  the  Maria,  together  with  their  expected  profits  thereon,  it  was  held  that 
they  had  no  insurable  interest,  because  they  had  entered  into  no  contract  with 
the  Messrs.  Harrison  &l  Co.,  which  was  capable  of  being  enforced  bylaw; 
Lord  Abinger  observing, — "  The  argument  of  the  plaintiff's  counsel  rests  upon 
an  analogy  drawn  from  tlie  law  relating  to  insurance  on  freight.  It  is  very  true 
where  a  party  is  entided  to  the  ship,  either  wholly  or  in  part,  the  law  will  allow 
him  to  make  a  separate  insurance  on  the  freight.  If  thereby  a  charter-party 
and  the  ship  is  lost,  he  is  entided  to  recover  for  the  freight.  But  if  a  ship  be 
sent  out  for  goods,  and  none  are  received  on  board,  there  is  no  interest  to  main- 
tain an  insurance  on  the  profits.  Where  goods  are  received  on  board  a  vessel, 
and  a  contract  is  made  to  secure  them,  then  if  a  loss  happens  the  assured  may 
recover,  because  his  receipt  of  the  goods  has  been  prevented  by  the  perds  of 
the  seas  :  for  he  has  made  a  contract  which  he  has  great  reason  to  expect  will 
be  performed.  But  cases  of  freight  are  not  analogous  to  cases  of  insurance  on 
r  *Pin  1  ^^^^  ^profits  to  arise  from  the  sale  of  goods,  they  stand  upon  the 
L  J  assumption  that  the  assured  has  in  his  own  power  the  subject-mat- 

ter upon  which  the  insurance  is  effected.  If  contracts  for  goods  to  be  purchased 
in  future  were  allowed  to  be  insured,  it  would  be  allowing  a  wager-policy  to  be 
made,  (a)  But  such  a  doctrine  would  defeat  the  Legislative  enactment  on  the 
subject,  and  create  an  imaginary  interest,  which  has  no  foundation  in  law. 
Here  there  was  no  written  contract,  or  any  contract  which  the  plaintiffs  could 
have  enforced.  The  cases  of  freight  suppose  the  contract  capable  of  being 
enforced.  Here  no  interest  in  goods  passed  to  the  plaintiffs.  There  is  a  con- 
tract to  sell  one  hundred  tons  of  palm-oil,  to  arrive  by  the  Maria:  if  the  vessel 
do  not  arrive,  or  the  goods,  the  contract  is  void.     Then  where  is  the  interest  .f*" 

In  the  case  of  De  Costa  v.  Firth,  (b)  an  insurance  was  made  upon  any  of 
the  packet-boats  which  should  sail  from  Lisbon  to  Falmouth,  or  such  other 
port  as  his  Majesty  should  direct,  for  one  year,  from  October,  1763,  to  October, 
1764,  upon  any  kinds  of  "goods  and  merchandises"  whatsoever.  And  it  was 
agreed  that  the  goods  and  merchandises  should  be  valued  at  the  sum  insured  on 
such  packet-boats,  without  further  proof  of  interest  than  the  policy,  and  to 
make  no  return  of  premium,  for  want  of  interest  being  on  bullion  or  goods. 
The  insured  had  an  interest  in  bullion  on  the  Hanover  packet,  being  one  of  the 
king's  packets  between  Lisbon  and  Falmouth ;  and  it  was  totally  lost  within 
the  time  mentioned  in  the  policy.  The  Court  held  that  was  a  policy  of  a 
peculiar  sort,  and  was  an  exception  out  of  the  19  Geo.  2,  c.  37.     It  is  a  mixed 


(a)  See  Kent  v.  Bird,  Cowper,  583.  (/>)  6  M.  &  W.  224. 

(tf)  See  the  case  of  Knox  v.  Wood,  atite  p.  48,  the  transaction  amounting  in  effect  to  an 
insurance  on  a  void  contract. 

(b)  4  Burr.  1966,  ante  p.  22. 


UPON    ANY    KIND    OF    GOODS    AND    MERCHANDISES.  29 

policy — partly  a  wager-policy,  partly  an  open  one  ;  and  it  is  a  valued  policr, 
and  fairly  so  without  fraud  or  misrepresentation.  Therefore,  the  loss  having 
happened,  the  insured  is  entitled  as  for  a  total  loss. 

Ninthly,  we  come  now  to  another  class  of  insurances  under  this  head  of 
profits,  viz  :  those  which  arise  upon  a  joint  capture  *of  tlie  army  r  ^ri  n 
and  the  navy,  before  condemnation,  to  the  ofliccrs  and  crews  of  the  L  J 

ships,  who  have  an  insurable  interest  by  virtue  of  the  Prize  Act,  which  usually 
passes  at  the  commencement  of  a  war.  This  was  held  in  the  case  of  Lt  Crm 
v.  Hughes,  (o) 

It  was  an  action  upon  a  policy  of  insurance  of  the  ship  St.  Domingo.,  "at 
and  from  Ornoa  to  Londoji,"  upon  which  a  case  was  reserved  for  the  opinion 
of  the  Court.  The  facts  of  the  case  were  these : — Captain  Luttrell,  com- 
manding five  of  his  Majesty's  ships,  and  Captain  Dalrymple,  commanding  a 
party  of  land  forces,  captured  two  Spanish  register  ships,  lying  under  the  pro- 
tection of  Fort  Omoa:  that  the  ship  Sf.  Domingo  (on  which  the  insurance 
was  made)  was  one  of  the  prizes,  and  was  coming  home,  laden  with  the  pro- 
perty then  captured,  upon  which  ship  the  defendant  underwrote  500/. :  and  the 
ship  was  lost  bv  perils  of  the  sea.  The  question  was,  whether,  by  virtue  of 
the  Prize  Act  of  19  Geo.  3,  c.  07,  the  officers  and  crews  of  the  ships  under 
Captain  Luttrell,  had  such  an  insurable  interest  in  the  ship  St.  Domingo  as  to 
entide  them  to  recover. 

J iOrd  3fans/ie!d. — "There  are  two  questions  in  this  cause;  1st,  whether 
the  sea  officers  had  an  insurable  interest.''  This  will  depend  upon  the  Prize 
Act  and  proclamation ;  2nd,  whetlier  possession  would  entitle  them  to  insure 
upon  the  bare  contingency  of  a  future  grant  from  the  Crown  .^  As  to  the  first, 
consider  the  act  of  Parliament  which  gives  to  all  the  people  on  board,  that  is, 
to  the  flag  officers,  commanders,  and  other  officers,  to  the  seamen,  marines, 
on  board  every  ship  and  vessel  of  war,  the  sole  property  of  in  all  and  every 
ship  and  vessel,  which  they  shall  take  during  the  war  after  condemnation. 
Does  the  act  say  that  the  seamen  only  should  take?  Does  it  leave  a  joint  cap- 
ture by  the  army  and  navy  undefined.^  Certainly  not.  Suppose,  for  instance, 
a  case  which  I  remember  to  have  happened :  a  Dutch  and  English  fleet  com- 
bined, captured  some  ships:  the  English  sailors  could  not  take  solely;  nor 
could  the  act  mean  they  should  have  *nothing.  In  the  case  in  r-  ^-^  -, 
question,  suppose  Captain  Dalrymple  had  given  no  assistance,  is  L  -J 

there  any  doubt  that  Captain  Luttrell  would  have  taken  the  whole .►*  The  only 
difference  is,  that  he  has  not  now  the  merit  of  a  sole  captor.  The  word  sol- 
diers in  the  proclamation,  means  soldiers  on  board  the  ship.  Thus  it  stands 
on  the  act  and  proclamation.  But  supposing  that  doubtful,  as  far  back  as  from 
Queen  Anne's  time  down  to  the  present,  wherever  a  capture  has  been  made  by 
a  King's  ship  or  a  privateer,  the  Crown  has  always  given  a  grant  of  it  after 
condemnation.  There  is  no  instance  to  the  contrary.  Is  then  the  contingency 
of  the  ship's  coming  safe  such  an  interest  as  the  captor  may  insure?  Insurance 
is  a  contract  of  indemnity,  some  interest  is  necessar}^,  but  not  any  particular 
form  of  interest — it  does  not  depend  upon  a  vested  formal  interest.  The  ques- 
tion is,  whether  this  contingency  is  such  a  benefit  to  the  assured  as  will  make 
it  a  loss  to  him  if  the  ship  does  not  arrive?  An  insurance  on  die  profits  of  a 
voyage  was  holden  to  be  good,  {a)  An  agent  of  prizes  may  insure  the  arrival 
of  a  ship  which  will  produce  him  profit;  for  though  he  has  not  the  possession 
of  the  property,  he  has  an  interest  in  the  ship's  coming  safe  as  that  he  may 
insure.     Here  the  possession  is  in  the  assured,  and  a  certain  expectation  of 

(a)  B.  R.  East,  22  Geo.  3 ;  Park  Ins.  568 ;  see  also  1  B  &  P.  324. 
(a)  Grant  v.  Parkinson,  ante,  p.  38,  43. 


30  UPON    ANY    KIND    OF    GOODS   AND    MERCHANDISES. 

receiving  the  property  captured  from  the  Crown,  which  gives  him  an  interest 
in  the  arrival.  It  is  not  a  vested  interest,  but  such  an  expectation  as  never  was 
defeated."     Judgment  for  the  plaintiff. 

Lord  Eldon,  in  the  case  of  Lucena  v.  Craufurd,  [b)  speaking  of  the  case  of 
Le  Cras  v.  Hughes,  says,    "If  the  Omoa  case  was  decided  upon  the  expecta- 
tion of  a  grant  from  the  Crown,  I  never  can  give  my  assent  to  such  a  doctrine ; 
that,  though  founded  upon  the  highest  probability,  was  not  interest,  and  it  was 
equally  not  interest  whatever  might  have  been  the  chances  in  favour  of  the 
expectation.     That  which  was  wholly  in  the  Crown,  and  which  it  was  in  the 
power  of  his  Majesty  to  give  or  withhold,  could  not  belong  to  the  captors,  so 
r     *Kq      -1  as  to  create  any  right  in  them."     I  have  mentioned  *this  reported 
L         '        J  opinion  of  Lord  Ehlon's,  on  the  decision  of  that  great  master  of 
"insurance  law,"  Lord  C.  J.  Mansfield:  at  the  same  time  I  apprehend,  that 
the  opinion  of  a  lawyer,  even  so  great  as  Eldon,  is  not,  upon  such  a  question, 
to  be  mentioned  after  the  opinion  of  Lord  Mansfield,  and  that  the  decision  of 
that  great  Judge  in  that  case,  is  considered  by  the  Courts,  "Law,"  at  the  pre- 
sent time  (which  I  shall  presently  show.)     Lord  Eldon's  adoption  and  use  of 
the  terra  "chances,"  is  not  fair  nor  correct.     Lord  Mansfield  calls  "the  ex- 
pectation" a  "certainty,"  there  had  been  no  instance  to  the  contrary.     Was 
not  the  certain  expectation  of  the  grant  from  the  Crown  (supposing  the  ship  to 
have  arrived  safe,)  greater  than  the  expectation  of  the  profit  to  arise  from  the 
sale  of  a  cargo  of  molasses,  belonging  to  a  man  who  had  a  contract  with  govern- 
ment, and  who,  at  the  time  of  the  insurance,  could  not  have  a  perfect  contract 
with  regard  to  the  sale,  and  that  the  government  might  have,  at  all  hazards,  dis- 
regarded their  contract  with  him  ;  might  not  the  faith  of  the  executive  govern- 
ment have  failed  in  that  case,  rather  than  in  a  case  of  such  importance  to  the 
honour  of  the  Crown,  and  to  the  welfare  and  success  of  the  British  navy  ?     I 
will  now  refer  to  the  judgment  of  Lord  C.  J.  Tindal,  whose  legal  reputation 
is  inferior  to  neither  of  the  two,  upon  this  opinion  of  Lord  Eldon''s  upon  Lord 
Mansfield''s  decision.     His  Lordship,  in  delivering  judgment  in  the  case  of 
Devaux  v.  Steele,  (o)  says,  "  this  argument  is  founded  upon  the  cases  of  Grant 
V.  Parkinson,  [b)  Le  Cras  v.  Hughes,  and  other  cases  of  the  same  class,  which 
were  cited  and  relied  on  at  the  Bar.      It  is  undoubtedly  true  that  in  the  case  of 
Le  Cras  v.  Hughes,  Lord  Mansfield  expressed  a  decided  opinion,  that  the 
"expectations"  of  future  benefit  founded  on  the  contingency  of  a  future  grant 
from  the  Crown,  but  warranted  by  universal  practice,  did  amount  to  an  'insu- 
rable interest. '  But  after  the  observations  of  liord  Eldon  on  that  case,  in  giving 
r     *Pi4.      1  judgment  in  the  House  *of  Lords,  in  the  case  of  Lucena  v.  Crau- 
L  -^  furd  (in  error,)  (a)  and  by  Ellenborough  in  Jtouth  v.  Thomp- 

son, (6)  the  doctrine  laid  down  in  Le  Cras  v.  Hughes,  if  still  to  be  treated  as 
a  binding  authority,  must  be  considered  incapable  of  being  extended,  and  as 
confined  to  cases  falling  strictly  within  the  same  circumstances.  The  case, 
however,  of  Le  Cras  v.  Hughes,  did  in  its  circumstances  show  "an  expecta- 
tion" approaching  much  nearer  to  a  certain  interest  than  the  present.  In  that 
case  it  was  stated  by  Lord  Mansfield,  "the  Crown  always  makes  the  grant, 
and  there  is  no  instance  to  the  contrary."  We,  therefore,  observe  that  the 
decision  of  Lord  Mansfield  is  upheld,  as  far  as  its  circumstances  appear,  by  the 
Court  in  the  important  and  fully  argued  case  of  Devaux  v,  Steele  ;  and,  although 
it  must  be  admitted  that  the  authority  of  a  lawyer  like  Lord  Eldon,  will  always 
claim  the  respect  of  the  profession  of  the  law,  and  regard  from  the  Judges,  his 

(6)  2  N.  R.  323.  («)  8  Scott,  637;  6  B.  N.  C.  358. 

(6)  The  molasses  case,  decided  by  Lord  Mansfield. 

(a)  2  N.  R.  321.  (6)   11  East,  434. 


UPON   ANY    KIND   OF    GOODS    AND    MERCHANDISES.  31 

observations  upon  the  case  in  question,  do  not  seem  to  amount  to  much  weio-ht, 
particularly  when  considered  in  comparison  with  the  opinion  of  the  great  Judge, 
who  decided  that  case  with  the  full  approbation  of  the  whole  Court. 

We  go  on  now.  after  this  digression,  to  pursue  this  subject  farther,  and  to 
refer  to  some  of  the  cases  just  mentioned,  and  which  called  into  notice  the 
principles  laid  down  by  Lord  Mansfield  in  Grunt  v.  Parkmson^  and  Le  Crats 
V.  Hughes. 

The  first  case  Avhich  is  to  be  briefly  mentioned,  is  a  case  which  came  on  for 
argument  before  Lord  Kemjon.,  and  the  rest  of  the  Court  of  King's  Bench.  It 
was  the  more  modern  case  of  Boehm  v.  Bell,  (c)  in  which  it  was  held  that  the 
captors  of  ships  seized  by  them  as  prize,  have  an  insurable  interest  in  them  in 
the  voyage  home,  for  the  purpose  of  bringing  them  to  adjudication  in  the 
Admiralty  :  so  that  if  the  Court  of  Admiralty  should  not  adjudge  them  as  prize, 
and  award  restitution  to  the  owners,  the  captors  are  not  entitled  to  a  return  of 
premium. 

Jjord  Kenyan,  after  argument,  "observed  that  if  it  were  a  *Iegal  r  i;;;-p.  -i 
capture  the  captors  were  entitled ;  if  the  capture  was  improperly  •-  -I 

made,  they  were  liable  to  be  called  to  account  in  the  Court  of  Admiralty,  where 
tliey  might  be  amerced  in  damages  and  costs.  They  had  therefore  a  right  to 
insure  against  the  decision,  that  might  have  loaded  them  with  damages  and 
costs.  On  this  short  ground  I  am  of  opinion,  that  the  assured  had  an  insura- 
ble interest,  and  there  could  be  no  return  of  premium.  Mr.  J.  Grose. — "The 
whole  difficulty  has  arisen  from  confounding  an  indefeasible  interest  with  an 
insurable.  It  is  not  pretended  that  the  assured  had  the  absolute  property  in  the 
subject  of  insurance  ;  neither  need  they  have  such  property  to  make  the  policy 
legal,  it  is  sufficient  if  they  had  an  insurable  interest :  and  according  to  what 
was  said  by  Lord  Mansfield  in  Le  Cras  v.  Hughes,  they  certainly  had  an  insu- 
rable interest.  If  they  had  succeeded  in  the  Court  of  Admiralty,  it  will  be 
admitted  that  they  had  an  insurable  interest ;  and  in  case  of  their  not  succeed- 
ing, these  were  events  for  which  they  might  be  made  answerable,  and  against 
which  it  was  competent  for  them  to  insure."  Mr.  J.  Lawrence,  "the  case 
turns  on  this  short  question,  whether  or  not  the  assured  had  an  interest  which 
they  might  insure.?  Did  they  mean  to  game?  or  was  there  not  a  loss  against 
which  they  might  indemnify  themselves  by  a  policy.?  I  don't  mean  a  certain, 
but  a  possible  loss.  Now  it  has  been  shown  that  this  was  a  case  in  which  the 
Admiralty  might  have  decreed  costs  and  damages.  That  is  sufficient.  It 
might  he  asked,  in  the  language  of  Lord  Mansfield  in  Le  Cras  v.  Hughes, 
had  not  the  assured  such  an  interest  in  the  ship  coming  home,  as  to  entitle  them 
to  an  indemnity.?  I  think  they  had,  and  therefore  that  the  plaintiffs  are  not 
entitled  to  a  return  of  premium." 

So  also  the  Commissioners  appointed  by  the  act  of  the  35  Geo.  3,  c.  80,  for 
the  purpose  of  taking  care  of  and  disposing  of  Dutch  ships  and  effects,  detained 
in  or  brought  into  the  ports  of  this  kingdom,  and  who,  by  their  commission  are 
to  manage,  sell,  and  dispose  of  the  same  to  the  best  advantage,  according  to  the 
instructions  they  should  from  time  to  time  receive  from  his  Majesty  and  the 
Privy  Council,  contended  *that  they  had  an  insurable  interest  in  r-  ^,„  -. 
Dutch  ships  and  effects,  seized  at  sea  by  his  Majesty's  ships  of  L  ^"  J 
war,  that  they  might  be  brought  into  the  ports  of  this  kingdom,  that  they  might 
insure  in  their  own  names  ;  {a)  and  a  count  in  a  declaration  on  such  a  policy, 
stating  the  nature  of  their  trust,  and  averring  that  they  as  such  Commissioners, 
were  interested  in  the  ships  and  goods,  and  that  the  insurance  was  made  for 
their  use  and  benefit,  and  account  as  such  Commissioners,  was  upon  demurrer 


(c)  8  T.  R.   1.54.  (a)  See  ante,  p.  7,  35. 

Vol.  VII.— D 


32  UPON   ANY   KIND    OF    GOODS   AND    MERCHANDISES. 

holden  to  be  good  in  the  King's  Bench.  The  Court  considering  them  in  the 
Hght  of  trustees,  consignees,  or  agents,  in  either  of  which  characters,  it  was 
conceived  they  had  an  insurable  interest,  Craufurd  v.  Hunter.  (6)  The  case 
was  three  times  argued  in  the  Exchequer  Chamber,  (c)  and  the  judgment  of  the 
Court  of  King's  Bench  was  athrmed  by  Lord  Alvanley,  C.  J.,  of  Common 
Pleas,  Lord  C.  B.  MacDonald,  Heath,  Justices ;  Hotham,  Thompson,  and 
Graham,  Barons,  against  the  opinion  of  Chanihre,  J.  A  writ  of  error  was 
afterwards  brouglit  upon  this  judgment  in  the  House  of  Lords,  and  after  much 
argument  at  the  Bar,  several  questions  were  referred  to  the  learned  Judges,  a 
majority  of  whom  were  for  affirming  the  judgment  of  the  Exchequer  Chamber. 
But  some  doubts  having  arisen  in  the  House  of  Lords  as  to  the  extent  of  dam- 
ages which  had  been  given,  particularly  by  the  Lord  Chancellor,  Erskine,  and 
by  Lords  Eldon  and  Ellenborough.  A  venire  facias  de  nova  was  awarded  in 
July,  1806,  which  came  on  to  be  tried  before  Lord  Ellenborough,  at  the  Sit. 
after  Mich.  1806.  \n  the  course  of  the  discussion  which  had  taken  place,  it 
was  pretty  generally  understood  that  whatever  difference  of  opinion  there  might 
be  respecting  the  interest  of  the  Commissioners,  the  House  of  Lords,  and  all 
the  Judges  were  clearly  of  opinion,  that  his  Majesty  had  undoubtedly  an  insu- 
rable interest  in  the  sliips  and  cargoes  taken  possession  of  under  the  autliority 
of  the  statute  j  therefore  the  Attorney  General,  [Gibbs)  and  the  late  Mr.  J. 
Park,  who  were  counsel  for  the  plaintiffs,  thought  it  their  duty  to  take  verdicts 
r  *p;7  1  °"  those  counts,  which  =^'averred  the  interest  in  the  King.  Lord 
L  J  Ellenborough  also  directed  the  jury,  that  in  his  opinion  his  Majesty 

had  a  good  insurable  interest,  upon  which  direction  the  underwriters,  by  their 
counsel,  tendered  his  Lordship  a  bill  of  exceptions. 

The  parties  agreed  to  take  the  writ  of  error  to  the  House  of  Lords,  without 
going  through  the  Exchequer  Chamber,  and  at  last  on  the  29th  June,  1808,  the 
House  unanimously,  with  the  concurrence  of  all  the  Judges,  gave  judgment  for 
the  assured,  afhrming  the  judgment  of  the  King's  Bench. 

But  it  has  been  held  that  a  statement  in  a  case  reserved  that  the  insurance 
was  on  account  of  tlie  captors,  precluded  the  consideration  whether  a  count  in 
the  declaration  could  be  sustained,  averring  the  interest  to  be  in  the  Crown  : 
and  therefore  in  the  case  of  Routh  v.  Thompson,  (a)  after  a  proclamation  by 
the  king  in  council,  to  detain  and  bring  into  port  all  Danish  vessels,  a  hired 
armed  ship  took  and  carried  into  Lisbon  a  Danish  vessel,  and  sold  her  cargo 
there,  towards  paying,  in  part,  the  expenses  of  necessary  repairs,  but  without 
the  authority  of  a  Court  of  Admiralty,  and  afterwards  took  in  a  cargo  on  freight 
for  England  from  Lisbon,  on  which  day  hostilities  were  declared  against  Den- 
m,ark,  by  another  proclamation  of  the  king  in  council,  after  which  an  assurance 
w^as  made  on  the  ship  and  freight  by  order  and  on  account  of  the  captors  :  it 
was  held  that  the  captors  had  no  insurable  interest,  as  they  could  claim  nothing, 
but  only  ex  gratia  of  the  Crown,  the  Dane  having  been  seized  before  any 
declaration  of  war  against  Denmark,  and  the  captors  having  no  claim  to  prize 
under  the  Prize  Acts.  The  action  was  tried  before  Lord  Ellenborough,  at 
Guildhall,  in  which  the  plaintiff  took  a  verdict,  subject  to  the  opinion  of  the 
Court.  Tiie  case  was  argued  in  Trin.  Term,  1808.  Lord  C.  J.  Ellenborough 
said  the  case  involved  a  question  of  considerable  magnitude,  and  the  Court 
would  consider  of  it  ,•  and  at  tlic  end  of  the  Term  his  Lordship  delivered  their 
opinion.  His  Lordship  said, — "■  In  one  count  the  interest  is  averred  to  be  in 
r  *Pia  1  '^^^  Majesty,  and  the  insurance  is  stated  to  have  been  on  his  *ac- 
L  J  count  5  and  in  another  the  interest  is  averred  to  be  in  the  com- 


(6)  8  T.  R.  13.  (c)  3  B.  «&  P.  75. 

(a)   11  East,  428. 


UPON    ANY    KIND    OF    GOODS    AND    MERCHANDISES.  33 

mander,  officers,  and  crew  of  the  Ditchess  of  Bedford ;  and  the  insurance  is 
stated  to  have  been  on  their  account.  The  case  expressly  states,  that  the  insu- 
rance was  made  on  account  of  the  captors  :  and  that  statement  prechides  us 
from  considering  it  as  made  on  account  of  tlie  Crown.  Had  there  been  no 
such  specific  statement,  it  might  have  been  open  to  us  to  consider,  whether  the 
poHcy  were  not  referrable  to  the  interest  of  the  Crown  ;  but  after  a  distinct 
statement  that  the  insurance  was  made  (not  on  behalf  the  Crown,  but)  on  account 
of  the  captors,  it  must  be  referred  wholly  to  them  ;  and  the  plaintiffs  must 
recover  or  fail,  as  they  have  or  have  not  a  riglit  to  aver  an  interest  in  them- 
selves. This  brings  us  to  the  question,  whether  the)''  had  an  insurable  interest? 
Their  right  in  this  respect  has  been  put  upon  two  grounds  :  first,  that  they  had 
a  well-grounded  expectation,  warranted  by  the  practice  of  the  Crown  in  similar 
cases,  that  the  ship  and  freight,  had  there  been  no  loss,  would  have  been  granted 
to  them  ;  and  secondly,  that  Uiey  had  the  lawful  possession,  and  were  liable 
either  to  the  Crown  or  the  foreign  owner  for  the  safe  custody  of  the  vessel : 
and  that  on  either  of  these  grounds  they  are  warranted  in  insuring  on  their  own 
account.  As  to  the  first,  it  is  material  to  see  in  what  situation  the  captors  stood: 
it  is  clear  they  had  no  vested  right ;  they  could  demand  nothing  from  the 
Crown.  Had  the  Crown  made  the  grant  in  their  favour,  it  would  have  been 
altogether,  ex  graficK  a  mere  boon  and  gift.  That  gift  might  have  been  of  the 
whole,  or  it  might  have  been  of  part,  and  of  a  very  inconsiderable  part  only. 
The  bounty  of  the  Crown  would  probably  have  been  proportional  to  the  merit 
of  the  capture,  detention,  and  value  of  the  prize.  Had  any  considerable  danger 
attended  the  performance  of  these  services,  the  grant  would  probably  have 
extended  to  the  whole  ;  had  there  been  no  danger  or  difficulty,  the  grant  would 
have  probably  been  smaller  ;  and  had  it  appeared  that  the  seizure  had  been 
made  upon  speculation  only,  without  any  knowledge  of  the  proclamation,  there 
Avould  probably  have  been  no  grant  at  all.  At  any  rate,  if  there  were  a  grant, 
it  would  be  mere  bounty  ;  *and  has  a  man  a  right  to  indemnity  r-  ^_^  -. 
because  he  has  lost  the  chance  of  receiving  a  gift  ?     Had  the  ship  L  -J 

arrived  in  safety,  the  captors  would  have  had  the  chance  of  a  grant  from  the 
Crown  ;  but  can  they,  in  respect  of  that  chance,  insure  the  ship's  arrival  ?  To 
what  extent  could  they  insure  ?  Not  to  the  whole,  because  the  grant  might 
have  been  of  a  part ;  nor  to  any  given  part,  because  it  must  liave  been  uncer- 
tain what  part,  if  any,  would  have  been  granted.  The  utmost  extent  is  the 
value  of  the  chance  ;  and  how  is  that  to  be  estimated  ?  Independently  of  the 
difficulty  of  fixing  the  value,  and  supposing  such  a  chance  insurable,  must  not  the 
interest  be  so  described  in  the  policy  ? — (or  a  man,  who  has  no  right,  legal  or 
equitable,  either  in  ship  or  freight,  might  effect  an  insurance  on  either,  merely 
because  he  has  a  chance  some  collateral  benefit  may  come  to  him  if  the  ship 
and  cargo  should  arrive  in  safety.)  The  declaration  must  aver  an  interest  in 
the  subject  insured,  and  that  interest  must  be  proved  ;  and  how  can  it  be  said 
that  these  captors  have  any  interest  when  the  ship  is  altogether  the  king's — the 
freight  is  altogedier  the  king's  ?  And  the  captors  have  no  interest  in  eitlier,  nor 
other  concern  in  respect  to  the  same,  beyond  a  mere  chance  that  the  king  may 
be  induced  to  give  them  something  out  of  the  produce  of  the  ship  and  freight. 
As  to  the  second  count,  that  the  captors  had  the  lawful  possession,  and  were 
responsible  either  to  the  Crown  or  to  the  Banish  owners  for  the  safe  custody 
of  the  vessel,  is  this  a  true  representation  of  their  situation  ?  They  certainly 
had  the  lawful  possession,  but  were  they  responsible  for  the  ship's  safety, 
unless  as  far  as  tliat  safety  might  be  endangered  by  any  Avrongful  acts  of  their 
own.''  The  seizure  was  warranted  by  the  king's  proclamation  :  that  made  their 
possession  lawful.  The  subsequent  declaration  of  hostilities  put  an  end  to  any 
claim  by  the  Banish  owners,  and,  of  course,  to  all  responsibility  of  the  captors 
as  to  them.     It  then  became  their  duty  to  act  for  the  best,  with  a  view  to  the 


34  UPON   ANY   KIND    OF    GOODS    AND    MERCHANDISES, 

safety  of  the  ship,  and  the  mere  interest  of  the  Crown  therein.  They  were 
bound  to  leave  Lisbon;  it  was  for  the  interest  of  the  Crown  that  they  should 
r  *fin  "1  '^^'''^^  ^^^^  ^"^'P  instrumental  in  withdrawing  from  Lisbon  as  nnich 
L  J  property  *as  she  could  possibly  carry  with  propriety.     They  acted 

for  the  best,  and  were  consequendy  justified  in  respect  to  the  Crown  in  what 
they  did.  The  Crown  cannot  call  upon  them  for  damages  ;  and  they  have  no 
right  to  ask  for  a  sum  as  an  indemnity,  when  they  have  not  been,  and  (under 
the  circumstances  stated)  could  not  have  Ijeen  damnified.  The  consequence  is, 
that  the  plaintiff  has  no  right  to  recover  upon  the  policy.  The  question  then 
arises,  whether  he  has  any  right  to  recover  his  premium  }  And,  as  there  was 
no  fraud  in  the  captors,  in  effecting  this  policy  :  as  there  was  no  illegality  in 
the  voyage  or  insurance  :  and  as  the  resistance  of  the  underwriters  to  the  claim, 
upon  the  ground  that  there  was  no  risk  :  the  plaintifl"  is  entitled  to  his  premium, 
and  the  verdict  should  be  entered  accordingly." 

Subsequently  to  the  above  action,  another  action  on  the  same  facts  was 
brought  by  the  plaintifl"  against  the  defendant,  wlio  has  subscribed  for  300/. 
The  action  was  commenced  on  tlie  2l3t  June^  1810,  upon  insurance  made  by 
him  in  his  firm  of  P.  &  H.  Le  Mesuirer  &  Co.,  dated  12th  November,  1807, 
upon  the  ship  ICnud  Tcrkehon,  valued  at  3500/.,  and  on  freight  not  valued, 
"at  and  from  Lisbon  to  JjOndon.^''  The  interest  was  averred  to  be  in  his 
Majesty,  and  the  loss  to  be  by  perils  of  the  sea.  The  defendant  pleaded  the 
general  issue;  and  at  the  trial,  before  liOrd  EUenborough,  at  tlie  Sit.  after 
Trin.  Term,  1800,  at  Guildhall,  a  verdict  was  found  for  the  plaintiff,  subject 
to  the  opinion  of  the  Court  upon  a  special  case.  The  argument  on  the  case 
was  heard  in  Hill.  Term,  1811. 

Lord  EUenborough,  C.  J. — "The  points  made  for  our  consideration  are, 
first,  whether  the  king  had  an  insurable  interest,  supposing  him  to  have  been 
apprised  of  his  right  at  the  time  when  the  insurance  was  made,  and  had  deter- 
mined to  insure  it;  and  next,  whether  he  could  adopt  it  after  it  was  made. 
The  facts  are  that,  after  a  proclamation  by  the  king  in  council  for  the  detention 
of  Danish  vessels,  an  armed  ship,  in  the  service  of  his  Majesty,  took  posses- 
sion of  the  Danish  ship  in  question.  Was  it  taken  on  behalf  of  the  king.^  It 
r  *pi  n  w^s  taken  by  his  servants,  in  an  armed  brig  engaged  in  his  *ser- 
1-  ^  vice ;  and,  if  not  taken  piratically,  must  have  been  taken  for  him. 

The  king,  therefore,  had  possession  of  the  Danish  ship ;  for  as  between  his 
Majesty  and  those  who  were  acting  on  his  behalf  and  under  his  authority,  and 
who  were  accountable  to  him  if  they  damaged  or  embezzled  the  property,  their 
possession  was  for  this  purpose  his  possession.  Then  had  the  king  a  lawful 
possession  ?  Was  it  ever  made  a  question  whether  the  king  were  a  wrong-doer 
in  seizing  the  vessels  of  a  foreign  nation?  If,  then,  his  Majesty  had  a  lawful 
possession,  may  he  not  insure  the  property  against  loss.^  He  was  legally  com- 
petent to  do  so,  though  not  in  the  practice  of  insuring  his  own  ships  of  war. 
IJut,  it  may  be  said,  that  he  knew  noUung  at  the  time  of  insurance.  It  was 
made,  however,  by  the  orders  of  his  officers,  whose  duty  it  was  to  take  care  of 
the  property,  and  who  were  responsible  to  him  for  it.  Then  may  he  not 
adopt  the  act?  The  insurance  is  not,  indeed,  nuide  in  terms  in  the  king's 
name,  but  it  was  by  the  direction  of  Sampson,  who  had  been  made  agent  by 
the  captors  for  the  prize.  15ut  the  captors  had  no  interest  of  their  own  in  it, 
and  tlierefore,  for  their  (nvn  l)enefit,  they  were  not  competent  to  appoint  an 
agent ;  they  must  therefore  be  taken  to  have  appointed  him  as  agent  on  the  part 
of  the  Crown,  whose  servants  and  agents  ihey  were.  Then  Sampson  writes 
the  letter  authorizing  the  insurance  being  made,  and  therein  he  desires  insu- 
rance to  be  nuule  "for  my  account."  That,  certainly,  was  not  intended  as  a 
direction  to  insure  his  own  individual  interest,  but  merely  credit  was  to  be  given 
to  him  for  the  premiums ;  and  he  proceeds  to  state  that  the  insurance  is  to  be 


UPON    ANY    KIND    OF    GOODS    AND    MERCHANDISES.  35 

made  of  the  Danish  vessel,  Knud  Terkeho)i,  whicli  had  been  detained  by  his 
Majesty's  armed  ship,  Duchess  of  Bedford,  and  for  which  lie  was  authorized 
to  act  as  a^ent.  There  was  no  (communication  of  the  names  of  the  particular 
persons  for  whose  benefit  the  insurance  was  to  be  made,  nor  was  it  necessary 
that  the  agent  should  then  know  who  they  were ;  but  it  was  to  he  effected  in 
the  name  of  the  agent,  for  t!ie  lienefit  of  those  who  should  be  concerned  in 
interest :  and  tlie  underwriters  bound  themselves  to  indenmify  those  r-  ^^^  -. 
*who  should  appear  to  be  interested  in  the  prize,  in  case  of  loss  ;  it  L  J 

must,  therefore,  enure  for  the  benefit  of  the  Crown,  which  alone  had  any 
interest  in  the  captured  vessel.  The  Crown,  then,  having  an  insurable  right, 
afterwards  adopt  this  act  of  its  servants  and  agents.  And  if  the  policy  were 
made  for  the  benefit  of  those  concerned,  and  tlie  Crown  were  concerned  in 
interest,  there  can  be  no  doubt  it  may  adopt  the  act ;  and  it  has  adopted  it.  The 
case  of  Craufurd  v.  Lucena  is  full  in  point  to  this.  The  Dutch  Commis- 
sioners were  strangers  to  the  property  before  it  came  within  the  ports  of  this 
kingdom,  though  connected  \v\i\\  it  in  trust  when  it  was  brought  there ;  but  the 
Crown  afterwards  adopted  the  insurance,  and  the  House  of  Lords  held  that  to 
be  a  valid  adoption,  as  well  in  respect  of  the  ships  taken  before  as  afterwards,  (a) 
Here,  then,  there  was  an  adoption  by  the  Crown  of  the  act  by  which  the  pro- 
perty was  acquired  :  and  there  was  also  an  adoption  of  the  insurance  made  after- 
wards to  protect  it.  By  the  adoption  of  the  act  of  taking  possession,  there  was 
an  insurable  interest  in  the  king;  and  the  adoption  of  the  insurance  gave  him 
also  an  interest  in  the  policy.  The  f^icts,  therefore,  being  expressly  stated  from 
whence  this  conclusion  may  be  drawn,  and  which  it  was  left  to  us  by  the 
statement  of  the  case,  there  is  no  occasion  to  send  the  question  again  to  a  jury." 
Routh  V.  Thompson,  [b) 

The  principle  of  law  decided  in  the  above  case  was  recognized  likewise  in 
a  more  modern  case  of  Hagcdom  v.  Oliverson.  (c)  In  which  it  was  decided 
that  where  the  plaintiff  made  an  insurance  (c/)  on  "ship"  as  well  in  his  own 
name  as,  for,  and  in  the  name  of  all  and  every  other  person,  &c.,  in  the  usual 
form,  for  the  benefit  of  one  F.  S.  Schroeder,  an  alien  enemy,  and  procured  a 
license  to  legalize  the  voyage,  and  a  loss  happened,  and  two  years  afterwards, 
Schroeder,  by  letter  *to  the  plaintiff,  adopted  the  insurance,  the  p  ^g^  -, 
plaintiff  might  recover  against  the  underwriter,  averring  the  interest  "- 
in  Schroeder.  (a)  The  plaintiff  had  a  verdict  before  Lord  Ellenborough  at 
Guildhall,  subject  to  the  opinion  of  the  Court. 

After  argument  in  Easter  Term,  1814,  Lord  Ellenborough,  C.  J.,  said — 
"The  plaintiff  had  a  right  to  make  an  insurance,  on  the  chance  of  its  being 
adopted  for  the  benefit  of  all  those  to  whom  it  might  appertain,  which  are  the 
words  of  the  policy.  He  might  insure  for  those  who  were  actually  interested, 
and  possibly  who  might  be  interested.  Schroeder  was  interested,  and  might 
become  privy  to  this  insurance  by  subsequent  adoption,  according  to  Lucena  v. 
Craufurd,  and  Bouth  v.  Thompson.  He  has  adopted  it,  and  now  it  is  made 
a  question,  whether  he  can  become  privy  to  the  benefit  of  it.  It  appears  to 
me,  upon  those  authorities  he  may  make  use  of  the  name  of  the  person  at  the 
head  of  the  policy,  as  the  person  who  had  given  the  order  to  effect  the  insu- 
rance, which  will  satisfy  the  stat.  28  Geo.  3,  c.  56.  [b)     It  seems  to  me  that 


(a)  See  ante,  p.  7,  and  see  by  Lord  Ellenborough  himself,  Lucena  v.  Craufurd,  1  Taunt. 
385. 

(b)  13  East,  274.  (c)  2  M.  «fe  S.  485. 

(«-/)  It  was  stated  upon  the  argument  that  the  plaintiff  gave  the  order  to  the  broker  to 
make  the  insurance. 

(a)  See  1  M.  «&  S.  5G6,  where  it  appears  that  Schroeder  was  interested  in  part  of  the 
ship.  (6)  Sec  ante,  p.  3. 


36  UPON    ANY    KIND    OF    GOODS    AND    MERCHANDISES. 

this  action  is  maintainable  for  the  benefit  of  Schroeder,  who  was  interested  at 
the  time,  and  has  become  privy  by  adoption." 

The  next  case  which,  from  its  importance  with  respect  to  tlie  law  of  insu- 
rances on  "prizes,"  deserves  mentioning,  is  the  case  of  Slirling  and  olhem  v. 
Vaughan.  (c)  This  was  an  action  on  a  policy  of  insurance  effected  by  the 
plainliffs  as  agents,  upon  a  ship  called  The  Prize,  No.  3,  and  her  cargo, 
"from  Monte  Video  to  London.''  The  subject  of  insurance  was  a  prize  taken 
from  the  Spaniards,  by  the  conjoint  forces  of  the  army  and  navy  upon  the  expe- 
dition to  the  river  Plata:  the  interest  was  averred  in  the  first  count  to  be  in  the 
king:  by  the  second  to  be  in  the  captors  ;  there  was  a  third  count,  not  neces- 
sary to  mention.  The  loss  was  alleged  to  be  by  perils  of  the  sea,  on  the 
voyage  home.  At  the  trial  before  Lord  EUenhorough  at  Guildhall,  Admiral 
r  *aA  "1  Murray  was  called  *as  a  witness,  to  show  on  whose  account  the 
L  J  insurance  had  been  effected  :  and  he  deposed,  that  after  the  capture 

of  this  and  other  prizes  by  the  conjoint  forces  employed  on  the  expedition,  a 
Mr.  Blacker  was  appointed  prize  agent  for  ships,  by  the  naval  and  military 
commanders,  to  act  on  behalf  of  all  interested  in  the  capture;  and  from  him 
orders  were  received  at  home,  to  insure  everything  in  which  the  captors  were 
interested :  but  it  did  not  appear  that  Blacker  had  received  any  appointment  or 
direction  from  the  Treasury,  or  any  other  department  of  government  authoriz  - 
ino-  him  specially  to  insure  or  take  of  the  interests  of  the  Crown,  further  than 
such  an  authority  might  by  law  be  inferred  from  his  appointment  as  prize  agent 
by  the  captors,  and  tlie  directions  received  by  him  from  them,  to  act  on  behalf 
of  all  interested  in  the  capture.  Neither  was  there  any  evidence  of  the  king's 
havinff  repudiated  such  an  authority.  The  prize  was  lost  by  the  perils  of  the 
sea  on  the  homeward  voyage,  and  before  any  condemnation  of  her  in  the  Court 
of  Admiralty.  Under  these  circumstances.  Lord  Ellenborough,  C.  J.,  left  it 
to  the  jury,  to  infer  an  authority  from  the  Crown  to  the  captors,  to  cause  insu- 
rance to  be  made,  or  an  adoption  of  it  when  made  on  behalf  of  its  interest  in 
the  prize,  in  which  the  captors  themselves  had  at  least  an  eventual  interest :  and, 
considering  that  the  plaintiffs  were  entitled  to  recover  either  on  the  first  or 
second  count ;  though  he  relied  at  the  time  principally  on  the  former ;  his 
Lordship  advised  the  jury  to  find  a  verdict  for  the  plaintiffs,  which  they  did 
accordingly.  A  new  trial  Avas  moved  in  Mich.  Term,  1809.  During  the 
argument,  the  following  observations  fell  from  the  Lord  Chief  Justice. 

Lord  EUenhorough. — The  law  will  presume,  if  nothing  appear  to  the  con- 
trary, that  every  person  accepts  that  which  is  for  their  benefit.  And,  here,  it 
is  for  the  benefit  of  the  Crown  to  preserve  the  prize,  if  it  were  only  for  the 
purpose  of  securing  to  the  captors  the  reward  which  its  bounty  had  provided 
for  them  in  the  event  of  condemnation.  Besides,  the  dc  facto  captors  have  a 
^.„_  -,  special  property  in  the  thing  ^captured,  founded  upon  a  lawful 
L  J  possession,  which  they  hold  for  those  who  are  ultimately  found  to 

be  interested  in  it :  and  unless  it  be  shown  to  be  a  mere  tortious  capture,  it 
must  be  taken  to  be  a  lawful  capture  and  possession  by  them.      That  view  of 
the  subject  relieves  it  from  all  questions,  whether  a  mere  expectation  of  a  sub- 
sequent grant  from  the  Crown  be  insurable,  as  an  interest  in  the  subject-matter. 
After  argument  at  the  Bar,  the  Court  at  once  pronounced  judgment. 

Lord  EUenhorough,  C.  J. — "A  general  verdict  has  been  given  for  the 
plaintiffs  in  this  case  upon  the  declaration,  which  contains  three  chfferent  aver- 
ments of  interest  in  different  counts  (the  third  being  out  of  tlie  question) — the 
first  averrinjr  the  interest  in  tlie  king — the  s(U'ond  in  the  captors.  The  verdict 
must  be  sustained,  if  at  all,  either  upon  tlie  first  or  second  count.     The  sub- 


(f)   11  East,  G18. 


UPON    ANY   KIND    OF    GOODS    AND    MERCHANDISES.  37 

ject-matter  of  the  insurance  was  a  prize,  taken  by  the  army  and  navy  con- 
jointly; and  the  words  in  which  the  authority  is  stated  to  have  been  given  to 
Blacker  to  insure,  were,  that  he  was  appointed  prize  ajjcnt  for  the  ships,  by 
the  naval  and  military  commanders,  to  act  on  behalf  of  all  interested  in  the 
capture;  and  under  that  authority  he  directed  the  insurance  in  question  to  be 
made.  The  inclination  of  my  mind  at  the  trial  was,  that  this  might  be  consid- 
ered as  a  special  authority,  to  act  on  behalf  of  the  king  as  well  as  the  immediate 
captors ;  but  I  would  not  rely  altogether  on  that,  when,  according  to  the  more 
obvious  and  probable  meaning  of  the  words,  the  authority  was  meant  to  be 
given  for  the  benefit  of  the  captors,  under  the  appropriation  of  the  Crown,  by 
virtue  of  the  Prize  Act  of  45  Geo.  3.  That  brings  it  to  the  question  of  inter- 
est in  the  captors  under  that  statute ;  whether  before  condemnation  they  have 
such  a  vested  interest  in  the  subject-matter,  as  is  by  law  capable  of  being 
insured?  And,  therefore,  my  opinion  Avill  not  clash  with  any  opinion  deliv- 
ered in  any  other  case,  nor  with  the  letter  or  spirit  of  the  stat.  19  Geo.  2,  c. 
37,  against  gambling  or  wagering  policies.  But,  though  the  verdict  could  be 
sustamable  upon  diis  short  ground,  yet  I  wish  to  consider  tbe  case  more  at 
large.  For  all  valuable  purposes,  the  captors,  as  such,  must  be  p  ^^^  -, 
taken  *to  represent  the  Crown :  and,   in  the  case  of  Liicena  v.  L  -• 

Craiifurd,  it  was  considered  by  the  same  noble  and  learned  person,  {a)  whose 
opinion  has  been  adverted  to,  tliat  the  kuig  has  an  insurable  interest  in  a  prize 
before  condemnation ;  and  yet,  that  till  condemnation  there  remains  something 
wanting,  the  vesting  of  the  full  property  in  the  Crown,  (6)  and  to  enable  the 
Crown  to  grant  it  to  others,  as  against  the  original  owners.     It  is  the  sentence 
of  a  Court  of  Admiralty,  upon  the  question  of  prize,   which  concludes  the 
question  of  property  against  the  original  owners,   according  to  the  case  of 
Hughes  V.  Cornelius,  (c)     Then  by  the  act  of  45  Geo.  3,  the  Crown  gives 
up  its  right  in  the  prize  to  the  captors,  subject,  however,  as  before,  to  the  final 
adjudication  of  the  property,  as  prize,  by  the  Court  of  Admiralty.     But  it  is 
said  that  tlie  Crown  may  still  release  the  prize  to  the  captured  before  condemna- 
tion, and  therefore  the  captors  cannot  have  an  insurable  interest  in  the  property. 
But  that  right  of  the  Crown  trenches  no  more  upon  the  insurable  interests  of 
tlie  captors'^under  the  statute,  than  upon  that  of  the  king  himself.     It  is  then 
objected  that  the  property  in  the  prize  may  never  become  vested  in  the  captors, 
It  is  vested,  however,  as  far  as  the  Crown  has  any  right  to  vest  it,  defeasible 
no  doubt,  by  an  adjudication  of  the  Court  of  Admiralty  against  the  captors,  to 
restore  the  prize  to  the  former  owners :  but  it  is  not  in  common  experience 
that  a  defeasible  right  is  insurable  }     It  is  the  case  of  consignees  of  goods  under 
a  bill  of  lading :  the  goods  on  their  passage  home  are  liable  to  be  stopped  in 
transitu,  and°his  interest  defeated  :  yet  can  it  be  said  that  the  property  is  not 
so  far  vested  in  the  consignee,  as  to  entide  him  to  insure?     The  indefeasibility 
of  the  property,  therefore,  is  not  the  criterion  of  an  insurable  interest.     Again, 
what  is  the  case  of  an  executor?     Probate  is  necessary  to  complete  his  tide: 
yet  before  probate,  he  has  tide  sullicient  to  insure.     The  captors  have  the  actual 
possession  of  the  subject-matter  of  insurance  by  the  grant  of  die  p     ^g^      -i 
king,  *the  only  person  in  the  kingdom  who  could  contest  the  tide  ^ 
with  them.     They  have  the  possession,  with  a  partial  right  of  disposing  of  the 
thing  immediately,  liable  indeed  to  have  their  right  devested  by  a  sentence  of 
restoration.     But  what  difference  is  there  between  the  right  of  the  captors  and 
of  the  Crown  in  these  respects?     The  assignees  of  the  Crown,  as  they  may 
be  styled,  must  stand  in  the  same  situation  in  this  respect  as  the  Crown  itself. 


(a)  Lord  Eldon,  2  New  Rep.  323.  (?>)  See  ib. 

(c)  2  Show,  232,  Sir  T.  Raymond,  473;  and  Skin.  59. 


# 


38  UPON   ANY   KIND    OF    GOODS   AND   jMERCHANDISES. 

This  is  not  like  insuring  a  mere  expectation,  nor  like  the  case  of  the  Dutch 
Commissioners,  who  had  no  interest  in  the  ships  insured,  till  they  arrived 
within  the  ports  of  the  realm.  But  these  captors  had  a  present  possession,  and 
a  right  to  maintain  trespass  against  any  person  attempting  to  take  the  prize 
from  them.  Even  with  respect  to  captors  in  general ;  supposing  the  prize  not 
to  have  been  acquired  tortiously,  hut  jure  belli,  I  should  think  that  in  respect 
of  their  lawful  possession  and  special  property  ihey  might  insure  :  but  it  is  not 
necessary  in  this  case  to  decide  that  general  point;  tliey  had  not  only  a  right 
of  possession,  but  a  right  of  property  as  far  as  the  Crown  had  the  power  of 
granting  it,  liable  only  to  l)e  dispossessed  by  the  release  of  the  Crown,  or  by 
a  sentence  of  restoration."  The  other  Judges  concurred  in  this  judgment,  and 
the  rule  was  discharged. 

In  a  recent  case  of  Devaux  v.  Steele,  (a)  the  principles  of  law  laid  down  in 
the  cases  of  Grant  v.  Parkinson,  (6)  Le  Cras  v.  Hughes,  (c)  and  Bouth  v. 
Thompson,  (d)  came  under  the  consideration  of  the  Court  of  Common  Pleas. 
This  was  an  action  brought  upon  a  policy  of  assurance,  which  stated  the  assu- 
rance to  be  made  to  the  amount  of  800/.  on  bounty,  "allowed  by  the  French 
government,  on  the  tonnage  ship  Le  Henri,  agreed  to  be  valued  at  800/.  The 
declaration  alleged  that  the  said  bounty  would  have  been  allowed  by  the  French 
government,  if  the  ship,  with  the  cargo  on  board,  had  arrived  in  France :  and 
stated  a  total  loss  by  the  perils  of  the  sea.  By  a  law  of  France  relating  to  the 
r  *R8  "1  ^^'^^^^  fishery,  it  is  provided,  *"that  the  vessel  which  shall  have 
L  J  fished  in  either  the  Pacific  Ocean,  by  doubling  Cape  Horn,  or  by 

passing  through  the  straits  of  Magellan,  or  to  the  south  of  Cape  Horn,  at  six- 
ty-two degrees  of  latitude  at  least,  shall  obtain  on  its  return  a  supplemental 
bounty,  if  it  brings  back  in  the  produce  of  its  fishery,  one-half  at  least  of  its 
burthen,  or  can  prove  a  navigation  of  sixteen  months  at  least."  Held,  that 
supposing  the  bounty  not  to  be  payable  as  a  matter  of  right  under  the  strict 
interpretation  of  the  law  ,•  that  the  chance  of  receiving  this  bounty  on  her  return, 
founded  upon  an  alleged  invariable  course  of  practice  of  the  French  govern- 
ment in  its  administration,  did  not  constitute  an  insurable  interest.  Lord  Chief 
Justice  Tindal,  at  the  close  of  his  judgment,  says — "It  would  be  impossible, 
as  it  appears  to  us,  to  hold  this  to  amount  to  proof,  that  from  the  time  of  grant- 
ing the  bounty  there  has  been  a  uniform  practice  of  allowing  the  bounty  under 
the  circumstances  stated  in  the  case ;  and  unless  such  evidence  is  produced, 
the  case  does  not  fall  within  the  rule  laid  down  in  Le  Cras  v.  Hughes,  and  the 
plaintiff's  cannot  be  held  to  have  taken  an  insurable  interest  in  the  bounty." 

Tenthly,  a  consignee  of  goods  has  an  insura1)le  interest.  In  a  case  in  the 
Common  Pleas  of  Hill  and  another  v.  Secretan,  (a)  where  a  house  in  Spain, 
who  were  indebted  to  the  plaintiffs,  consigned  goods  to  Messrs.  Dubois,  and 
indorsed  a  bill  of  lading,  with  a  letter  annexed,  directing  them  to  hold  a  part 
of  the  said  cargo  for  the  use  of  the  plaintiffs,  who,  upon  getting  such  intelli- 
gence, made  the  insurance  in  question,  being  creditors  of  the  house  in  Spain, 
though  they  had  given  orders  for  the  goods ;  the  Court  held  that  the  plaintiffs 
being  creditors  of  the  house  in  Spain,  raised  a  good  consideration  for  the  assign- 
ment ;  and,  that  therefore,  there  could  be  no  doubt  that  the  plaintiffs  had  a  good 
insurable  interest. 

And  where  goods  were  consigned  from  Birmingham  to  Naples,  under  an 
r  »ro  "1  ^^'^^^  ^^  despatch  certain  goods,  (on  an  insurance  being  made)  it 
'-  J  was  held  that  the  consignee  might  *support  an  action  for  the  injury 


(a)  8  Scott,  637;  6  B.  N.   C.  358  (b)  Ante,  pp.  38,  43,  53. 

{c)  Artie,  pp.  18,  51.  {d)  Ante,  i)p.  57,  62. 

(a)   1  B.  &  P.  315,  and  Wolff  v.  Ilorncastle,  1  B.  &  P.  316. 


UPON   ANY    KIND    OF    GOODS   AND    MERCHANDISES.  39 

which  they  sustained  in  the  course  of  their  conveyance  to  Naples.  The  Court 
held  that  the  property  in  the  goods  vested  in  the  purchaser,  as  soon  as  they 
were  despatched  from  Birmingham,  and  that  the  intention  of  the  party  was 
strongly  evidenced  by  the  order  for  insurance,  which  had  been  given  on  the 
part  of  the  consignee ;  the  consignee  could  not  have  sued  upon  that  insurance, 
unless  he  had  had  an  interest,  nor  could  the  consignor  sue  upon  it  as  had  been 
declared  by  the  consignee.     Fragano  v.  Long,  (o) 

And  in  the  case  of  Neale  v.  ReicU  (b)  where  it  was  agreed  between  the  ven- 
dor and  the  purchaser  of  goods  that  the  goods  should  be  shipped  under  the  care 
of  an  agent,  appointed  by  both  parties,  for  the  vendor's  security  ,•  and  the 
purchaser,  wlio  had  drawn  bills  on  his  correspondent  for  the  payment  of  the 
purchase,  directed  his  correspondent  to  insure  the  goods  to  a  certain  amount,  it 
was  held  that  the  insurance,  which  was  made  according  to  the  purchaser's 
direction,  and  not  in  pursuance  with  an  agreement  with  the  vendor,  was  not 
liable  to  the  claim  of  the  vendor  for  a  part  of  the  purchase,  and  that  the  pur- 
chaser's agent  was  justified  in  paying  the  proceeds  of  the  policy  to  him. 
There  was  no  intimation  that  any  person  was  concerned  with  him  in  the  policy, 
nor  did  it  give  the  purchaser's  correspondent  any  authority  to  apply  the  pro- 
ceeds of  the  policy  to  the  vendor's  benefit.  Mr.  Justice  Holroyd  observed, 
"that  the  goods  were  shipped  at  the  risk  of  the  agent,  and  if  they  had  been 
lost  on  the  voyage  the  loss  would  have  fallen  upon  him.  Being  under  a  liability 
for  the  goods,"  if  lost,  he  insured  to  a  large  amount  at  his  own  expense ;  he  had 
made  no  bargain  to  insure,  but,  whether  insured  or  not,  was  compellable  to  pay 
the  bills,  and  therefore  provided  a  substitute  for  the  cargo  to  indemnify  himself 
in  case  of  a  loss  5  but  the  sum  insured  was  not  subject  to  the  same  liabilities  as 
the  cargo." 

It  is  to  be  observed,  that,  if  at  the  time  of  making  *insurance  p     ^^^      -, 
the  assured  has  an  insurable  interest  in  the  property,  it  is  imma-  L  J 

terial  that  the  property  may  have  afterwards  passed  to  another  party ;  for  the 
change  of  property  can  have  no  effect  in  relieving  the  underwriters  from  their 
liability,  as  tlie  assured  can  sue  on  the  policy  for  the  benefit  of  the  party  to 
whom  the  property  has  passed. 

Thus  in  the  case  of  Sparkes  v.  Marshall,  («)  where  Mr.  Bamford,  who  was 
a  corn-dealer,  at  Southampton,  sold  to  the  assured  from  five  hundred  to  seven 
hundred  barrels  of  oats,  to  be  delivered  at  Portsmouth,  to  be  shipped  by 
Thomas  John  and  Son,  merchants,  at  Youghall,  from  Youghall;  and  four 
days  afterwards  Bamford  advised  the  assured  that  Thomas  John  and  Son  had 
engaged  room  in  the  packet  to  take  about  six  hundred  barrels  of  oats  on  the 
assured's  account;  and  on  the  following  day  the  assured  made  an  insurance  on 
the  oats,  per  packet,  to  the  amount  of  400/. ;  and  the  oats  were  shipped,  but 
the  packet  being  bound  for  Southampton,  and  refusing  to  stop  at  Portsmouth, 
Bamford  sold  the  oats  again,  and  delivered  the  bill  of  sale  to  another  party  at 
Southampton;  and  the  plaintifl',  after  the  loss,  vested  his  interest,  by  indorse- 
ment, in  Bamford,  for  a  consideration :  it  was  held  that,  as  the  assured  had  a 
right  to  bind  Bamford  to  his  bargain,  and  call  upon  liim  either  to  procure  the 
packet  to  bring  the  oats  on  to  Portsmouth,  or  forward  them  by  another  vessel, 
he  had  a  legal  interest  in  the  specific  oats,  and  might  insure  it;  and  there  was 
no  assent  on  the  part  of  the  plaintiff  to  vary  his  right  or  claim  to  those  particu- 
lar oats  till  the  insurance  was  made  and  the  loss  known ;  and  that  there  was  no 
principle  of  law  on  which  a  change  in  interest  after  the  insurance  had  been 


(a)  4  B.  &  C.  219.  (b)   1  B.  &  C.  657. 

(a)  3  Scott,  172;  2  B.  N.  C.  761 ;  see  Sutherland  v.  Pratt,  11  M.  &  W.  296.     Ante, 
p.  12. 


40  UPON    ANY    KIND    OF    GOODS   AND    MERCHANDISES. 

made,  much  less  after  the  loss  had  happened,  which  could  be  set  up  by  the 
uilderwriters  agamst  a  claim  for  such  a  loss. 

But  in  another  modern  case  of  Clay  v.  Harrison^  (b)  where  the  assured,  in 
England,  contracted  with  Messrs.  Ilubbard  and  Co.,  at  St.  Petersbvrgh,  to 
r  *.7 1  -]  ^^"^'  ^^™^  ^  cargo  *of  deals,  to  be  paid  for  by  a  bill  at  three  months, 
L  J  which  he  duly  accepted.     The  deals  were  shipped,  and  the  insu- 

rance made.  The  ship  was  stranded  on  the  voyage,  near  Ehineiir,  and  the 
deals  saved,  but  so  much  damaged  as  not  to  be  worth  sending  for.  The  assured, 
on  hearing  of  the  accident,  gave  the  underwriters  notice  of  abandonment  the 
day  before  the  bill  became  due.  The  assured  having  become  bankrupt,  Hub- 
bard and  Co.  wrote  to  their  agents  at  Ehineur  to  take  possession  of  the  goods 
as  their  property ;  it  was  held  that  the  assurer's  assignee,  under  a  commission 
of  bankruptcy,  could  not  recover  on  the  insurance,  inasmuch  as  the  stoppage 
in  transitu  revested  the  property,  and  the  assured  had  no  longer  an  insurable 
interest.  Lord  Tenterdcn.  observing  that  the  question  was,  whether  the  bank- 
rupt had  an  interest  in  the  goods  insured  at  the  time  of  the  loss,  and  that 
depended  upon  the  effect  to  be  given  to  the  stoppage  in  transitu,  "we  are  of 
opinion  that,  under  the  peculiar  circumstances  of  this  case,  the  bankrupt,  after 
the  stoppage  in  transitu,  had  no  property,  and  that  therefore  the  action  cannot 
be  supported." 

In  the  case,  also,  of  TVolff'  and  another  v.  Horncastle,  {a)  which  was  fully 
treated  of  in  a  former  section,  (6)  it  was  held  that  where  a  merchant  had  con- 
signed a  cargo  to  a  company  in  London,  and  drawn  bills  for  the  amount,  but 
transmitted  tlie  bills  of  lading  through  the  plaintiffs,  his  general  agents,  to  be 
sent  to  the  company  that  they  might  insure,  and  he,  at  the  same  time,  drew  on 
them  for  300/.,  which  bills  were  accepted  and  paid;  but  the  company  refused 
to  accept  or  draw  on  them,  or  take  the  cargo,  or  to  insure,  upon  which  the 
plaintiffs  made  the  insurance  in  their  own  name,  and  informed  the  consignor, 
who  approved  thereof,  the  plaintiffs  were  to  be  considered  as  consignees  of  the 
whole,  and  had  a  right  in  that  character  to  insure  for  the  benefit  of  their  con- 
signor, and  that  they  had  a  clear  insurable  interest  in  themselves  to  the  amount 
of  300/. 

^^,-y      -,      *In  the  case  of  Smith  v.  LasceUes,  {a)  it  was  decided  that,  if  a 
L  J  merchant  abroad,  who  is  interested  in  goods  and  the  freight  of  the 

cargo,  mortgage  them  to  his  creditor  here  for  payment  of  money  at  a  certain 
day,  and  by  letter  inclosing  the  bills  of  lading,  and  at  the  same  time  give  direc- 
tions to  him  to  make  an  insurance,  the  latter  will  be  liable  to  an  action  for 
not  insuring,  notwithstanding  the  mortgage  was  absolute  before  the  letter  was 
received. 

In  the  foregoing  cases  it  lias  been  seen  how  strictly  the  Courts  have  construed 
that  part  of  tlu?  act  of  19  Geo.  2,  c.  37,  which  prohibits  any  person  making 
an  insurance  wbo  lias  not  got  an  interest  in  that  which  is  the  object  of  the  insu- 
rance ',  and  whenever  tliey  have  seen  on  the  face  of  the  policy,  that  tliere  is, 
in  fact,  no  fair  contract  of  indemnity  between  the  parties,  but  only  a  gaming 
transaction,  they  have  never  hesitated  to  declare  that  policy  void  by  the  statute. 

The  case  of  Loumj  and  another  v.  Bourdieu  {b)  is  an  instance  of  the  above 
observation. 

The  plaintiffs  had  lent  to  Lawson,  captain  of  the  Lord  Holland,  East  India- 
man,  26,000/.,  for  which  he  had  given  them  a  common  bond  in  the  penal  sum 


(6)  10  B.  &  C.  99. 

(a)    1  B.  cSt  P.  31G;  and  scu  Robertson  and  others  v.  Hamilton,  14  East,  522. 

(i)  Sect.  1,  ante,  p.  4.  (a)  2  T.  B.  187. 

(i)  Doug.  468. 


UPON    ANY    KIND   OF    GOODS    AND    MERCHANDISES.  41 

of  52,000/.  While  he  was  with  his  ship  at  China,  the  phiiiilins  got  a  policy 
of  insurance  underwritten  by  the  defendant  and  others,  which  was  in  the  fol- 
lowing terms  : — "At  and  from  China  to  London,  beginning  the  adventure  upon 
the  goods  from  the  loading  thereof  on  board  tlie  said  ship,  from  and  immediately 
following  her  arrival  in  China,  valued  at  20,000/.,  being  tlie  amount  of  Captain 
Patrick  Lawson's  common  bond,  payable  to  the  parties,  as  shall  be  described 
at  the  back  of  this  policy;  and  it  bears  date,  16th  day  of  December,  1775; 
and  in  case  of  loss,  no  other  proof  of  interest  to  be  required  than  the  exhibition 
of  the  said  bond :  warranted  free  from  average,  and  without  benefit  of  salvage 
to  the  insurer."  At  the  head  of  the  subscription  was  written, — "On  a  bond," 
as  above  expressed.  Captain  Lawson  sailed  from  China,  and  arrived  safe  with 
his  ^privilege  (as  it  is  called)  or  adventure  in  London,  1st  July,  r-  ^,^g  -> 
1777,  none  of  the  events  insured  against  having  happened.  The  L 
receipt  of  the  premium  was  acknowledged  at  the  back  of  the  policy.  This 
case  came  before  the  Court,  upon  an  action  for  a  return  of  premium,  on  the 
ground  that  the  policy  being  widiout  interest,  the  contract  was  void.  At  the 
trial,  which  came  on  at  the  Sit.  after  Trin.  Term,  1780,  the  Chief  .Justice  was 
of  opinion  diat  this  was  a  gaming  policy  prohibited  by  the  statute  19  Geo.  2, 
c.  37,  and  a  verdict  was  given  for  die  defendant.  A  motion  for  a  new  trial  was 
afterwards  made,  when  the  majority  of  the  Judges  confirmed  Lord  MamfieUVs 
opinion.  Mr.  Justice  Willis  differed  from  his  brethren:  the  learned  Judge 
being  of  opinion  that  it  was  not  a  gaming  policy  :  that  it  did  not  appear  to  hnn 
that  "the  parties  had  any  idea  they  were  entering  into  an  illegal  contract ;  that 
the  whole  was  disclosed,  and  they  thought  there  was  an  interest:  this  was  a 
mistake,  but  it  is  a  new  point  of  law. 

Lord  Mamfield. — "It  is  certainly  true,  in  many  instances,  that  first  thoughts 
are  best.  I  am  now  very  much  inclined  to  my  first  opinion.  There  are  two 
sorts  of  policies  of  insurance  :  mercantde  and  gaming  policies.  The  first  sorts 
are  contracts  of  indemnity,  and  of  indemnity  only ;  and  from  that  principle  a 
great  variety  of  decisions  and  consequences  have  followed.  The  second  sort 
may  be  in  the  same  form,  but  in  them  there  is  no  contract  of  indemnity, 
because  there  is  no  interest  upon  which  a  loss  can  accrue.  They  are  merely 
games  of  hazard,  like  the  cast  of  a  die.  In  the  present  case  the  nature  of  the 
msurance  is  known  to  both  parties.  The  plaintiffs  say,  '  We  mean  to  game, 
but  we  give  our  reason  for  it:  Captain  Lawson  owes  us  a  sum  of  money,  and 
we  want  to  be  secure,  in  case  he  should  not  be  in  a  situation  to  pay  us.'  It 
was  a  hedge :  but  they  had  no  interest ;  for  if  the  ship  had  been  lost,  and  the 
underwriters  iiad  paid,  slill  tlie  plaintifls  woidd  have  been  entided  to  recover 
the  amount  of  the  bond  from  Lawson.  This,  then,  is  a  gaining  policy,  and 
against  an  act  of  Parliament." 

*In  Puller  v.  Glover,  [a)  it  was  held  not  to  lie  a  gaming  policy  p  ^^^  -, 
for  a  person  who  had  chartered  goods  to  St.  Pefersburgh  to  make  L 
the  underwriters  agree  to  pay  a  total  loss,  in  case  the  ship  should  not  be  allowed 
by  the  Russian  Government  to  discharge  her  cargo  at  St.  Pefersburgh;  and 
the  assured  were  allowed  to  recover,  on  an  allegation  that  the  vessel  had  not 
been  allowed  to  discharge  her  cargo,  but  was  obliged  to  return,  by  which  the 
value  was  reduced  below  the  invoice  price,  together  with  the  charges  thereon, 
and  the  premium  of  insurance,  &c.  1st,  it  was  held  not  to  be  a  gaming  policy  ; 
2ndly,  it  is  an  insurance  upon  the  goods,  and  not  on  die  voyage;  and  3rdly, 
the  agreement  allows  the  non-admission  of  the  goods  to  be  a  loss. 

Where,  by  the  express  terms  of  a  charter-party,  the  owner  of  the  ship  stipu- 
lates with  the  freighter  that  part  of  the  freight  shall  be  payable  beforehand,  inas- 


(o)   12  East,  124. 


42  UPON    ANY    KIND    OF    GOODS    AND    MERCHANDISES. 

much  as  the  freighter  would  lose  the  money  so  advanced  by  him,  unless  the 
ship  and  cargo  arrived  safe,  he  therefore  has  an  interest  in  insuring  that  event 
to  the  amount  of  the  sum  he  has  advanced.  (6)  It  is  undoubtedly  competent 
to  the  owner  to  make  such  a  stipulation  ;  but,  if  he  does,  it  is  his  duty  to  take 
care  that  it  is  inserted  in  clear  and  explicit  language  in  the  charter-party  that 
the  money  advanced  shall  be  advanced  in  part  payment  of  the  freight,  (c)  But 
if  it  be  merely  an  agreement  between  the  parties,  which  is  a  very  usual  occur- 
rence, that  the  freighter  should  make  an  advance  to  the  master  for  the  use  of 
the  ship,  this  is  not  to  be  considered  as  a  part,  in  the  absence  of  express  terms 
in  the  charter-party  to  that  effect,  but  it  amounts  only  to  a  loan  on  the  part  of 
the  freighter  to  the  owner  of  the  ship,  and  consequently  the  former  has  no 
insurable  interest  in  the  money  advanced. 

This  was  decided  in  the  case  of  Mansfield  v.  Mai/ land,  (d)  which  was  an 
action  on  a  policy  of  insurance  on  "ship  and  goods,"  from  Quebec  to  London, 
r-  i;.-,p  -I  By  a  memorandum,  drawn  *at  the  foot  of  the  policy,  the  insurance 
L  J  was  declared  to  be  on  a  bill  of  exchange  for  219/.,  drawn  by  the 

master  on  the  plaintiffs,  at  Quebec.  A.t  the  trial,  before  Abbott,  C.  J.,  at  Guild- 
hall, it  appeared  that,  by  a  memorandum  of  charter-party  between  the  owners 
and  the  plaintiffs,  the  ship  was  to  proceed  from  London  to  Quebec,  and  there 
take  in  her  cargo,  one-half  of  the  freight  to  be  paid  on  unloading  and  right 
delivery  of  the  cargo,  and  the  remainder  by  bill,  on  L^ondon,  at  four  months' 
date ;  the  captain  to  be  supplied  with  cash  for  the  ship's  use.  In  pursuance  of 
this  last  stipulation,  the  master  drew  the  bill  of  exchange  in  question  for  219/., 
value  received,  for  the  ship's  use,  on  the  plaintiffs,  which  was  duly  accepted, 
and  paid.  The  ship  was  lost  on  the  homeward  voyage.  The  Lord  Chief 
Justice  was  of  opinion  that  the  plaintiffs  had  no  insurable  interest,  and  directed 
a  nonsuit;  and  Euijley,  J.,  said, — "If  the  memorandum  of  charter-party  had 
clearly  expressed  that  the  money  advanced  should  be  in  part  payment  of  the 
freight,  then  it  would  follow  that  the  loss  of  the  ship  would  occasion  the  loss 
of  the  money  advanced  by  the  freighter,  and  he  would  have  had  an  insurable 
interest  in  it.  But  if  that  is  not  so,  and  it  be  only  a  loan  by  the  freighter,  he 
would  have  no  insurable  interest,  having  a  remedy  against  the  owner  for  the 
debt.  Now,  if  it  had  been  the  intention  of  the  parties  it  should  be  a  part  pay- 
ment of  the  freight,  one  would  naturally  have  expected  that  the  memorandum 
of  charter-party  would  have  been  differendy  worded.  The  stipulation  is,  that 
one-half  of  the  freight  is  to  be  paid  in  cash  on  unloading,  and  the  remainder 
l>y  bill,  in  I^ondon.  Now,  instead  of  this,  there  woukl  have  been  added, 
'deducting  premium  advanced,'  if  such  deduction  was  intended  to  be  made. 
It  seems  to  me,  therefore,  that,  in  the  absence  of  any  such  stipulation,  this 
money  was  to  be  advanced  as  a  loan  by  the  freighter,  which  he  might,  in  case 
freight  was  earned,  deduct  from  the  freight,  but  for  which,  if  no  freight  were 
earned,  he  had  still  his  remedy,  even  against  the  owner;  and,  in  that  case,  it  is 
admitted  that  he  had  no  insurable  interest." 

r-  ^.^r.  -|  *In  die  case  of  Tanker  v.  Scott,  (a)  which  was  an  action  for 
L  -^  money  paid  for  the  use  of  the  defendant,  who  was  the  master  of 

a  ship,  called  the  Ocean,  who  drew,  in  Canada,  a  bill  on  his  owners  here,  in 
favour  of  T.  Gaudie,  for  1990/.,  for  supplies  lor  the  ship's  use,  and  wrote  on 
the  bill,  "If  be  not  honoured,  the  holder  will  insure  the  amount,  and  place  the 
premium,  &c.,  to  the  drawer's  account  and  the  ship's  account,"  J.  Scott.  The 
bill  being  dishonoured,  the  holder  insured  the  ship  for  three  months,  and  the 


(fi)  Sec  De  Silvalc  v.  Kcn.lal,  4  M.  &  S.  37. 

(<;)   Per  T.ord  Tcntordcn,  4  B.  &  A.  585.        (d)  4  B.  «St  A.  582. 

(a)   G  Taunt.  234. 


UPON    ANV    KIND    OF    GOODS   AND    MERCIIANDISEa.  43 

interest  was  declared  to  be  "on  the  interest  in  a  bill  of  exchan'jfe,  drawn  by 
the  defendant,  on  Mr.  Bowtield,  in  favour  of  T,  Goudie,  dated  Quebec,  lOlh 
June,  1814,  being  for  value  received,  for  the  use  of  the  said  ship;  and  it  was 
agreed  that,  in  the  event  of  loss,  the  bill  should  be  considered  as  sufficient  proof 
of  interest,  and  payment  made  accordingly."  The  drawee,  receiving  advices 
from  the  drawer,  paid  the  bill,  after  the  insurance  had  been  eflected,  but  refused 
to  pay  the  charge  of  insurance.  The  ship  was  lost  after  the  expiration  of  the 
three  months.  At  the  trial,  at  Guildhall,  Sit.  after  Easter  Term,  the  counsel 
for  the  defendant  made  four  objections  to  the  plainlili''s  recovering.  Glhb.-i,  C. 
J.,  overruled  dieni ;  and  the  jury  found  a  verdict  for  the  plaintiffs.  On  the 
motion  ibr  a  new  trial,  the  counsel  for  th;;  defendant  moved  on  tivo  only  of  the 
objections  made  at  the  trial.  First,  the  insurance  was  illegal;  [b)  secondly,  he 
urged  that,  if  the  holder  was  authorized  to  effect  an  insurance,  it  was  his  duty 
to  effect  a  policy  for  the  voyage,  so  that  the  owners  might  have  the  benefit  of 
it,  in  case  the  ship  was  lost. 

Gibbd,  C.  J. — "There  is  nothing  in  either  of  these  objections.  A  discre- 
tion was  given  to  the  holder  of  the  i)ill  to  insure  for  his  own  benefit,  and  ho 
was  to  insure  according  to  that  discretion  as  he  chose  to  exercise  it;  and  he 
has  exercised  it  prudently.  As  to  the  other  objection — on  the  illegality  of  the 
insurance — I  desire  the  doctrine  I  lay  down  may  be  confined  to  this  particular 
case :  I  thiidv  the  plaintiffs  *werc  entitled  to  pay  the  money  they  p  ^^  -, 
paid  for  the  use  of  the  master;  this,  too,  would  be  clearly  an  avail-  L  J 

able  security  in  all  cases,  except  the  case  of  a  Brilhh  ship,  and  it  is  not  in 
proof  that  the  plaintiffs  knew,  nor  was  it  incumbent  on  them  to  inquire,  whether 
this  was  a  British  ship  or  not." 

The  Court  refused  the  rule  on  all  the  grounds. 

A  question,  bearing  much  upon  the  subject  of  our  present  consideration,  was 
decided  in  a  very  recent  case  (in  the  Court  of  King's  Bench)  of  JVinter  v. 
Haldimand.  (a)  The  matter  came  before  the  Court  on  a  motion  to  set  aside 
an  award,  and  the  question  was,  wdiether  the  underwriters,  upon  a  policy  of 
insurance  "on  merchandises,"  could  be  made  liable  for  certain  charges  and 
expenses  incurred  at  the  port  of  the  ship's  loading,  considered  as  additional  value 
imparted  to  the  goods  ?  The  facts  v/ere  the  following  : — 7'he  assured  hired  a 
vessel,  on  a  voyage  from  Buenos  Ayres  to  Canton  and  back ;  they  were  to 
pay  10,000  dollars  for  the  use  of  it,  in  this  manner,  viz  :  all  the  expenses  that 
might  be  necessary  at  Canton  for  the  port-charges,  and  2000  dollars  for  other 
incidental  expenses,  and  the  remainder  at  the  vessel's  return  to  Buenos  Jlyres. 
The  underwriters  had  no  notice  of  the  agreement.  It  was  held  that  the  assured, 
on  a  policy  on  "merchandise,"  could  not  recover  the  sums  of  money  paid  at 
Canton,  as  part  of  the  value  of  his  goods.  After  the  argument  at  the  Bar,  the 
Court  took  lime  to  consider  their  judgment,  which  was  al'terwards  delivered 
by  Lord  Tetiterden,  C.  J. — "In  the  argument  at  the  Bar,  on  behalf  of  the 
plaintifis,  reference  was  made  to  the  principal  foundation  of  all  insurance,  viz : 
indemnity;  and,  it  was  contended,  to  efl'ect  that  object,  and  bring  the  case 
within  the  principle,  the  payment  at  Canton  must  be  considered  as  part  of  the 
value  of  the  goods  shipped  at  that  place,  and  it  was  observed  that  the  charges 
of  shipping  and  the  premium  of  insurance,  are,  even  in  open  policies,  consid- 
ered as  part  of  the  value  of  the  goods ;  and  further,  the  freight  also,  if  paid  in 
advance,  was  in  practice  considered  as  part  of  their  value  on  a  total  loss.  This 
latter  assertion  was  denied  by  the  defendant's  counsel  to  be  true ;  r-  ^^„  -, 
and  the  *Court  has  no  means  of  knowing  how  the  practice  is,  nor  •-  -• 

(/;)  Citing  Kulen  Kemp  v.  Vine,  1  T.  R.  304. 
(a)  2  B.  &  Ad.  649. 


44  UPON   ANY    KIND    OF    GOODS   AND   MERCHANDISES. 

is  the  ascertainment  of  the  practice  material  in  our  view  of  the  case.  No  case 
like  the  present  lias  been  found  in  our  books,  nothing  of  the  kind  was  quoted 
from  foreign  authors,  and,  as  far  as  my  knowledge  of  them  extends,  nothing 
favourable  to  the  plaintiff  can  be  found  in  them.  We  must  therefore  look  at 
the  terms  of  the  poUcj/,  which  is  the  contract  in  question,  and  whether  its 
terms,  construed  according  to  any  principle  recognized  by  usage  in  this  country, 
will  authorize  the  plaintiff  to  charge  the  defendant  with  those  payments  at  Can- 
ton, as  part  of  tlie  value  of  the  merchandise  shipped  there :  there  is  no  other 
mode  in  which  the  defendant  can  be  made  answerable  for  them  on  this  policy, 
thouo-h  we  have  no  doubt  that  those  payments  might  have  been  made  the  sub- 
ject of  a  special  and  distinct  insurance.  It  is  found  that  the  underwriters  had 
no  notice  of  the  terms  of  the  charter-party,  and  therefore  they  could  not  know 
whether  the  parties  interested  would  have  engaged,  as  they  have  done,  to  treat 
the  payments  to  be  made  at  Canton,  as  part  of  what  is  called  freight,  so  that 
the  loss  thereof  would  fall  upon  them,  if  the  goods  were  lost ;  or  whether  the 
owners  of  the  ship  were  to  find  the  means  of  making  those  payments  on  their 
account.  And  it  appears  to  us  to  be  unreasonable  to  make  the  extent  of  the 
responsibility  of  the  underwriters  depend  upon  the  private  contract  of  the  par- 
ties interested,  and  not  upon  the  general  usage  and  custom  of  trade.  The  sum 
of  10,000  dollars  is  not  properly  to  be  called  freight,  but  is  the  price  of  the 
hire  of  the  ship,  and  would  have  been  payable  if  the  whole  48,000  dollars  had 
been  left  or  otherwise  disposed  of  at  Canton^  and  the  ship  had  returned  in  bal- 
last, or  with  passengers,  instead  of  'merchandise.'  And  if  these  payments,  to 
the  amount  of  5154  dollars,  can  be  added  to  the  price  of  the  goods  shipped  in 
this  case,  it  would  be  difficult  to  say  that  they  might  not  be  added  to  the  price 
of  a  much  less  quantity,  or  a  much  less  valuable  cargo.  In  truth,  the  sums 
payable  to  the  owners  of  the  ship,  for  the  use  of  the  ship,  have,  under  this 
charter-party,  no  distinct  relation  to  the  goods.  We  are,  therefore,  of  opinion, 
P  .;j~q  -|  that  the  payments  in  question  cannot  be  added  to,  *and  considered 
L  J  as  part  of,  the  price  of  the  goods.     Our  opinion  in  this  case  will 

have  no  effect  on  the  question,  whether  the  payment  on  the  shipment  of  goods 
ran  be  added  to  their  price,  so  as  to  form  part  of  their  value  in  an  open  policy, 
if  ever  that  question  should  arise.  Such  a  payment  is  not  properly  freight, 
but  the  price  of  the  privilege  of  putting  the  goods  on  board  the  ship,  in  order 
to  have  die  opportunity  of  having  them  taken  to  the  place  of  their  destination : 
it  relates  specially  and  distinctly  to  the  goods ;  and  when  it  is  constantly  made, 
according  to  the  usage  of  the  trade,  from  and  to  any  particular  country,  the 
usage  may  be  supposed  to  be  known  to  the  underwriters,  and  may  be  (but  we 
do  not  say  that  it  will  be,  or  ought  to  be)  considered  as  part  of  the  shipping 
charges,  or,  at  least,  as  so  analogous  to  as  to  be  governed  by  the  rule  that  is 
applicable  to  those  charges  in  the  construction  of  the  policy." 

The  same  doctrine  was  held  in  the  case  of  Palmer  and  others  v.  Pratt.  («) 
Where  a  merchant  advanced  money  to  the  captain  of  a  ship,  to  pay  for  goods 
he  was  about  to  carry  to  India,  on  the  security  of  two  bills  of  exchange,  pay- 
able on  the  contingency  of  his  arrival  there,  and  the  merchant  effected  an  insu- 
rance on  the  "ship  and  cargo,"  declared  by  the  policy  to  be  on  the  bills  in 
question :  it  was  held  that,  first,  he  could  not  recover,  because  the  bills  being 
on  a  contingency,  were  not  valid  :  and,  secondly,  because  he  had  not  an  insu- 
rable interest,  but  had  a  remedy  over  against  the  party  for  whose  use  the  money 
was  lent. 


(a)  2  Bing.  185. 


UPON    THE    BODY,   TACKLE,   ETC.   OF    THE    SHIP.  ^  45 


SECTION  V. 

AND  ALSO  UPON  THE  BODY,  TACKLE,  APPAREL,  ORDNANCE,  ETC.,  OF  THE  "GOOD" 

SHIP   CALLED,   ETC. 

Having  in  the  previous  section  discussed  the  law  relating  to  the  words  "on 
any  kind  of  goods  and  merchandises"  *stated  in  the  policy,  and  ^  ^g^  -, 
having  pointed  out  the  species  of  property  wliich  come  under  the  L 
general,  and  common,  and  usual  form  of  the  printed  policy  on  "goods,"  and 
likewise  the  instances  in  which  the  suhject-matter  of  the  insurance  must  be 
specially  stated,  and  "declared  on"  the  face  of  tlie  policy,  and  having  entered 
at  considerable  length  upon  the  nature  and  quantity  of  "interest"  the  assured 
must  have  in  the  subject-matter  of  the  assurance;  and  also  having  stated  the 
law  on  the  important  subject,  where  the  statute  law  has  interfered  in  tlie  case 
of  "wager"  policies,  and  policies  "on  interest  or  no  interest,"  or  without  fur- 
ther proof  of  interest,  than  the  policy,  "by  way  of  gaming,  or  wagering,  and 
without  benefit  of  salvage;"  and  has  enacted,  that  all  insurances  at  this  day, 
contrary  to  the  stat.  lOGeo.  2,  c.  37,  are  absolutely  void  and  of  no  effect: 
we  now  come  to  a  very  important  head,  viz: — "on  the  body,  &c.,  of  die 
ship,  and  the  master  of  the  ship,  for  the  voyage."  Firsdy,  we  shall  speak  of 
the  names  of  the  "ship"  and  "master."  This  is  expressed  in  the  policy,  in 
the  following  terms — "and  also  upon  the  body,  tackel,  apparel,  ordnance, 
munition,  artillery,  boat,  and  other  furniture  of,  and  in  the  good  ship  called  the 
,  whereof  is  master under  God,  for  diis  present  voyage — or  whoso- 
ever else  shall  go  for  master  in  tlie  said  ship,  or  by  whatsoever  other  name  or 
names  the  said  ship  (a)  or  the  master  tliereof,  shall  be  named  and  called." 

It  seems  to  be  necessary  by  the  custom,  and  practice  of  merchants,  that  the 
names  of  the  "ship"  and  "master"  should  be  inserted  in  the  policy,  in  order 
that  the  assurers  may  know  with  certainty  the  strength,  age,  and  sufficiency  of 
the  ship,  and  the  skill  and  knowledge  of  the  captain.  The  usage  in  this  matter 
is  the  same  in  respect  to  the  rules  in  Foreign  Maritime  States,  {b)  Some- 
times there  are  insurances  "  upon  any  ship  or  ships"  expected  from  a  parti- 
cular place.  And  Mr.  J.  Park  says,  in  his  treatise,  (c)  "  that  although  it  is 
more  accurate  to  insert  the  name  of  the  captain,  he  would  not  be  understood 
*to  assert,  as  no  decision  has  been  made,  that  if  a  different  captain  r-  ^^^  -, 
came  in  the  ship  from  that  whose  name  is  mentioned  in  the  policy, 
it  would  therefore  be  bad,  especially  as  the  policy  contains  the  words,  "or 
whosoever  else  shall  go  for  master  in  the  said  ship. " 

And  it  has  been  decided  in  a  case  of  Le  Mesurier  v.  Vaughan,  (a)  that  an 
insurance  would  not  be  vitiated  if  the  name  of  the  "ship"  was  mistaken,  pro- 
vided the  identity  was  proved,  and  where  there  was  no  fraud;  for,  as  policies 
contain  in  the  printed  form,  "or  by  whatsoever  name  the  ship  should  be 
called" — those  words  are  not  confined  to  the  case  of  the  ship  having  another 
name,  than  that  mentioned  in  the  policy.  Tiie  above  case  was  on  an  insurance 
on  "goods,"  described  by  the  policy  to  be  on  board  the  ''American  ship 
President;'"  the  real  name  being  "•The  President;  but  the  broker  having 
been  directed,  that  the  ship  was  named  ''President,''  and  to  designate  her  as 
an  American  ship,  had  by  mistake  described  her  as  above.     The  Court  were 


(a)  See  3  &  4  W.  4,  c.  55,  s,  24. 

(b)  Ord.  of  Lew.  14.     Tit.  Insurance,  art.  3.     Ord.  of  Amster.  s.  2. 

(c)  Park  Ins.  p.  19.  (a)  6  East,  382. 


46  UPON    THE    BODY,  TACKLE,  ETC.    OF    THE    SHIP. 


opinion  that  the  whole  was  to  he  taken  as  her  name,  and  not  as  a  warranty 
"her  being  an  Jimerican  ship"  called  "•  The  President.'"     And  it  was  also 


of 

of  "her  being  an  Jimerican  ship' 

held  to  be  no  variance,  that  the  real  name  of  the  ship  was  "  77je  President,'' 
the  identity  of  the  ship  with  that  name  being  proved,  and  no  fraud  in  the  trans- 
action. And  in  delivering  his  opinion,  Mr.  .T.  Lmmence  read  a  note  of  a  case, 
decided  by  Lord  C.  J.  Lee,  at  Guildhall,  exactly  in  point,  ip) 

The  insurance  in  that  case  was  made  "on  The  Leopard,  or  whatsoever 
name,  &c.,  whereof  was  master.  A.  B.,  for  that  voyage,  &c.,  "or  whosoever 
else  should  be  master."  Upon  the  evidence  of  A.  B.,  it  appeared  that  this 
ship  was  called  The  Leonard,  and  was  never  called  The  Leopard.  But  the 
Lord  Chief  Justice  was  of  opinion,  that  it  was  only  necessary  to  prove  the 
identity :  which  had  been  done  by  Captain  A.  B. 

,  -,       Also  an  insurance  may  be  made  on  "ship  or  ships"  "from  *a 

L  '^-^  J  particular  place."  This  was  held,  in  the  case  of  Kewley  and 
another  v.  Ryan,  [a)  The  case  was  this:  "an  insurance  is  made  on  certain 
goods  on  board  a  certain  ship  on  a  voyage,  at  and  from  Grenada  to  England f 
and  another  policy  is  also  made  "on  any  kinds  of  goods  as  interest,  should 
appear  on  board  'ship  or  ships,'  on  the  same  voyage  :"  warranted  to  sail  within 
a  limited  time;  but  no  circumstances  relating  to  the  first  poUcy  are  communi- 
cated to  the  underwriters  of  the  second,  nor  do  they  know  that  the  first  was 
made.  Goods  to  the  full  amount  of  the  sum  insured  by  the  first  policy,  are 
put  on  board  the  specified  ship,  which  arrives  in  safety.  Also  goods  to  the  full 
amount  of  the  sum  insured  in  the  second  policy,  were  put  on  board  another 
ship  which  sails  within  the  limited  time  from  Grenada,  with  an  intention  of 
touching  at  Cork  on  her  way  to  Liverpool;  and  is  lost  before  she  arrives  at 
the  deviating  point.  The  plainfiffs  obtained  a  verdict  for  the  second  insurance 
which  had  been  made.  At  the  argument  upon  the  rule  for  a  new  trial,  it 
seemed  that  at  the  trial  great  doubts  were  entertained  whether  such  a  policy  as 
this  on  "ship  or  ships"  were  a  good  one.  The  counsel  for  the  plaintiflf  argued 
that  these  were  well  known  to  foreign  nations :  {b)  and  were  constantly  used 
by  us  in  the  West  India  trade  in  time  of  war,  when  it  was  uncertain  by  what 
ships  the  produce  of  the  different  islands  might  be  sent  to  Europe.  Mr.  J. 
Bullcr  cited  the  case  of  Henchman  v.  Offley,  (c)  in  confirmation  of  the  doc- 
trine, that  the  assured  had  a  right  to  appropriate :  the  Court  took  time  to 
consider  the  question.  And  afterwards  in  Trin.  Term,  1794,  the  Court,  con- 
sisting of  Lord  Loughborough  C.  J.,  Mr.  J.  Heath,  Mr.  J.  Booke,  [d) 
declared  their  opinion  as  to  the  legality  of  the  policy  on  "ship  or  ships,"  that 
it  was  too  well  established  by  usage  and  authority  to  be  disputed.  Rule  dis- 
charged. 

r  ^.Q^  -1  Secondly,  a  question  respecting  the  carrying  the  "  boat  of  *the 
L  -•  ship  and  the  practice  in  what'manner,  in  some  voyages,  the  boats 

may  bo  placed  on  the  ship,"  was  one  of  the  points  in  the  case  of  Blackett  v. 
Royal  Exchange  Assurance  Company.  («)  It  was  an  action  of  covenant  on 
a  policy  of  assurance,  on  the  ship  "  Thames,  her  tackle,  apparel,  ordnance, 
munition,  boat,  and  otiicr  furniture,"  in  the  usual  form. 

At  the  trial  before  Vaughan,  B.,  at  the  Sit.  in  London,  the  plaintiffs  having 
])rovcd  the  loss  of  a  boat,  which,  with  other  damage  subsequently  incurred  by 
stress  of  weather,  amounted  to  more  than  3  per  cent,  within  the  memorandum. 


(6)  Hall  V.  Molincux,  Dec.  1744,  at  Guild.  6  East,  386. 

(a)  2  II.  B.  343,  (6)  Emerig.  173. 

(c)  B.  K.  Mich.  23  Geo.  3,  H.  B.  34.5,  n. 

\d)  J.  Bu/kr  was  absent,  but  concurred  in  the  judgment. 

(a)  2  Cr.  &  J.  244  ;  2  Tyr.  266. 


UPON  THE  BODY,  TACKLE,  ETC.  OF  THE  SHIP.  47 

the  plaintiff's  proved  tliat  it  was  considerccl.  proper  and  necessary  to  sling  the 
boats  on  the  outside  the  ship,  in  voyages  of  the  description  of  the  insured. 
The  defendants  oflered  evidence  of  a  usage,  that  hoats  slung  on  the  outside  of 
the  ship  on  the  quarter,  were  not  protected  by  the  policy.  The  learned  Baron 
was  of  opinion,  that  such  evidence  of  usage  was  inadmissible,  and  rejected  it. 
The  plaintill's  had  a  verdict,  with  leave  given  to  the  defendants  to  move  on  the 
rejection  of  the  evidence  of  usage.  Lord  Ljjndhurst,  C.  B.,  now  in  Hil. 
Term,  1832,  delivered  the  judgment  of  the  Court.  "There  were  two  ques- 
tions," (one  of  which  we  have  only  at  present  to  consider) — "one,  whether 
parol  evidence  of  an  usage  was  admissible  to  show,  that  for  boats  on  the  out- 
side of  the  ship,  slung  upon  the  quarters,  underwriters  never  paid  ?"  The 
policy  is  in  the  usual  form,  and  as  far  as  regards  the  ship,  imports  to  be  upon 
the  ship  (that  is,  the  body,)  tackle,  apparel,  ordnance,  munition,  boat,  and 
other  furniture  of  the  ship,  called  "  TTie  Thames/^  There  is  no  exception, 
and  the  policy  is,  therefore,  upon  the  face  of  it,  upon  the  "whole  ship,  on  all 
her  furniture,  and  on  all  of  her  appareh"  It  was  in  evidence  in  the  cause  and 
admitted  upon  argument,  that  upon  such  voyages  as  that  insured,  ships  inva- 
riably carry  a  boat  in  the  place  where  this  boat  was  carried,  and  slung  as  this 
boat  was  slung;  and  that  tlie  ship  would  not  be  properly  furnished  or  equipped, 
unless  she  had  a  boat  in  that  *place  and  so  slung.  The  objection  p  ^.q^  -, 
then  to  the  parol  evidence  was  this,  that  it  was  not  to  explain  any  ■-  -' 

ambiguous  words  in  the  policy,  any  word,  which  might  admit  of  doubt,  nor 
to  introduce  matter  upon  which  the  policy  was  silent,  but  was  at  direct  variance 
with  the  words  of  the  policy,  and  in  plain  opposition  to  the  language  it  used. 
That,  whereas  the  policy  imported  to  be  upon  the  ship,  furniture,  and  apparel 
generally — the  usage  is  to  say,  that  it  is  not  upon  all  the  furniture  and  apparel, 
but  only  upon  part,  excluding  the  boat.  Usage  may  be  admissible  to  explain 
what  is  doubtful,  it  is  never  admissible  to  contradict  what  is  plain.  The  cases 
are  all  in  Starkic  upon  Evidence.  («)  The  authority  referred  to  in  the  argu- 
ment, as  to  the  goods  lashed  on  deck,  seems  to  be  plainly  distinguishable,  and 
to  proceed  upon  a  different  principle. 

"On  an  insurance  'upon  goods,'  the  underwriter  is  entitled,  in  general,  to 
expect  that  they  shall  be  carried  in  that  part  of  the  ship  usually  appropriated 
to  the  stowage  of  goods,  not  in  a  more  dangerous  part ;  or,  if  they  be  goods 
which  ought  not  to  be  placed  in  the  ordinary  stowage,  but  in  a  more  perilous 
situation,  he  ought  to  be  apprised,  either  of  the  goods,  or  of  the  part  of  the 
ship  in  which  they  are  to  be  put.  If  he  is  left  to  suppose  that  they  are  ordi- 
nary goods,  he  will  naturallj^  suppose  they  will  be  placed  where  ordinary  goods 
are  placed,  and  that  Uiey  will  incur  the  hazard  only  of  ordinary  goods ;  and  if 
he  were  to  be  made  answerable  for  extraordinary  peril,  he  would  be  answer- 
able for  a  peril  which  he  had  not  contemplated,  and  for  which  he  had  not 
received  an  adequate  compensation.  This,  it  seems  to  us,  is  the  true  principle 
upon  which  evidence  of  usage  is  admitted  as  to  goods  lashed  on  deck.  They 
are  not  in  the  part  of  the  ship  where  goods  are  usually  carried,  they  are  in 
more  than  usual  peril,  and  a  usage  that  they  are  not  covered  by  an  ordinary 
policy  on  goods,  but  that  they  require  a  distinct  explanation  to  the  underwriter, 
of  the  part  of  the  ship  in  which  they  are  to  be  -^'carried,  or  (where  p  ^q,  -, 
that  will  imply  the  same  information)  of  the  nature  of  the  goods,  •-  J 

is  not  at  variance  with  any  part  of  the  policy,  is  essential  to  that  information 
which  the  underwriter  ouffht  to  receive,  to  enable  him  to  estimate  the  risk  and 
calculate  the  premiums,  and  is  a  portion  of  that  fairness  which  ought  to  be 
rigidly  observed  upon  all  these  contracts.     The  policy  was  upon  goods  gener- 

(fl)  Pp.  754,  759,  3rd  edit. 
Vol.  VII.— E 


48  UPON  THE  BODY,  TACKLE,  ETC.  OF  THE  SHIP. 

ally,  and  the  usage  explains  what  description  is  intended,  viz :  of  ordinary, 
not  of  extraordinary  danger.  We  are,  therefore,  of  opinion,  that  the  evidence 
of  usage  was  properly  rejected. 

In  the  case  of  Pelly  v.  Governor  &r  Co.  of  the  Royal  Exchange,  {a)  the 
plaintiff  being  part  owner  of  the  ship  Onslo?/',  an  jEast  India  ship,  then  lying 
in  the  Thames,  and  bound  on  a  voyage  to  China  and  back  to  London,  insured 
it  at  and  from  London,  to  any  ports  or  places  beyond  the  Cape  of  Good  Hope 
and  back  to  I^ondon,  upon  the  "body,  tackle,  apparel,  ordnance,  munition, 
artillery,  boat  and  other  furniture  of  and  in  the  said  ship."  The  ship  arrived 
in  the  river  Canton,  in  China,  where  she  was  to  stay  to  clean  and  refit,  and 
for  other  purposes.  Upon  her  arrival  there  the  sails,  yards,  tackle,  cables, 
riggings,  apparel  and  other  furniture  were  by  the  captain's  order  taken  out  of 
her  and  put  into  a  storehouse  called  a  bank-saul,  built  for  that  purpose  on  a 
sand-bank  or  small  island,  lying  in  the  said  river  near  one  of  the  banks  called 
Bank-said  Island,  in  order  to  be  there  repaired,  kept  dry  and  preserved,  till 
the  ship  should  be  heeled,  cleaned  and  refitted.  Some  time  after  this  a  fire 
broke  out  in  the  bank-saul  belonging  to  a  Swedish  ship,  and  communicated 
itself  to  another,  and  that  to  the  one  belonging  to  the  Onslow,  and  consumed  the 
same,  together  with  all  the  sails,  yards,  &c.  belonging  to  the  Onslow  that  where 
tlierein.  It  was  stated,  that  it  was  the  universal  and  well  known  usage,  and 
has  been  so  for  a  great  number  of  years,  for  all  European  ships  which  go  to 
China,  except  Dutch,  when  they  arrive  near  this  Bank-said  Island,  in  the 
r  -«R  1  *river  Canton,  to  unrig  the  ships,  and  take  out  their  sails,  yards, 
L  J  tackle,  cables,  rigging,   apparel  and  other  furniture ;   and  to  put 

them  on  shore  in  a  bank-saul  as  the  Onslojv  had  done.  This  is  for  the  com- 
mon and  general  benefit  of  the  owners  of  the  ship,  the  assurers  and  assured, 
and  all  persons  concerned  in  the  safety  of  the  ship.  The  ship  arrived  safe  in 
the  Thames,  after  being  fresh  rigged,  &c.  for  the  voyage.  The  question  for 
the  opinion  of  the  Court  was,  whether  the  insurers  are  liable  to  answer  for  this, 
so  happening  upon  the  bank-saul,  within  the  intent  and  meaning  of  this  policy. 
The  Court  took  time  to  consider,  and  then.  Lord  Mansfield — "By  the  express 
words  of  the  policy  the  defendants  have  insured  the  tackle,  apparel  and  other 
furniture  of  the  Onslow  from  'fire,'  during  the  whole  time  of  her  voyage,  until 
her  safe  return  to  London  without  any  restrictions.  Her  tackle,  &;c.  were  inevi- 
tably burnt  in  China,  during  her  voyage,  before  her  return  to  I^ondon.  The 
event  then,  which  has  happened,  is  a  loss  within  the  general  words  of  the 
policy;  and  it  is  incumbent  on  the  defendant  to  shew,  from  the  manner  in 
which  this  misfortune  has  happened,  or  from  other  circumstances,  that  it  ought 
to  be  construed  a  peril  which  they  did  not  undertake  to  bear.  If  the  chance 
be  varied,  or  the  voyage  altered  by  the  fault  of  the  owner  or  master  of  the 
ship,  the  assurer  ceases  to  be  liable ;  because  he  is  only  understood  to  engage, 
save  from  fortuitous  dangers,  provided  due  means  are  used  by  the  trader  to 
obtain  tlial  end.  IJut  he  is  not  in  fault,  if  what  be  did  was  done  in  the  usual 
course,  and  for  just  reasons.  The  assurer,  in  estimating  the  price  at  which  he 
is  wilHng  to  indemnify  tlie  trader  against  all  risks,  must  have  under  his  consid- 
eration the  nature  of  the  voyage  to  be  performed,  and  the  usual  course  and 
manner  of  doing  it.  Every  tiling  done  in  tlie  usual  course  must  liave  been 
foreseen,  and  in  contemplation  at  the  time  he  engaged ;  he  took  the  risk  upon 
a  supposition  that  what  was  usual  or  necessary  should  be  done.  In  general, 
what  is  usually  done  by  such  a  ship,  witli  such  a  cargo,  in  such  a  voyage,  is 
r  tfi-r  "I  ^understood  to  be  referred  to  in  every  policy,  and  to  make  part  of 
L  J  it,  as  much  as  if  it  was  expressed.     The  usage  being  foreseen  is 


(a)  1  Burr.  341. 


UPON  THE  BODY,  TACKLE,  ETC.  OF  THE  SHIP  49 

rather  allowed  to  be  done,  than  what  is  left  to  the  master's  discretion,  upon 
unforeseen  events :  yet,  if  the  master  ex  justa  causa,  go  out  of  the  way,  the 
insurance  continues.  Upon  these  principles  it  is  difficult  to  frame  a  question 
which  can  arise  out  of  this  case,  as  stated.  The  only  objection  is,  that  they 
were  in  the  bank-saul  instead  of  in  the  ship ;  upon  the  land,  not  at  sea,  or 
upon  water:  and  being  appurtenant  to  the  ship,  losses  and  dangers  on  shore 
could  not  be  concluded.  The  answer  is  obvious :  first,  the  words  make  no 
such  distinction.  Many  accidents  might  happen  at  land  even  to  the  ship. 
Suppose  a  hurricane  to  drive  it  a  mile  on  shore,  or  an  earthquake  may  have 
a  like  effect;  suppose  the  ship  to  be  burnt  in  a  dry  dock,  or  suppose  accidents 
to  happen  to  the  tackle  upon  land,  taken  from  the  ship  while  accidentally  and 
occasionally  refitiing,  as  on  account  of  a  hole  in  her  bottom,  or  other  mis- 
chance ;  these  are  all  possible  cases.  But  what  might  arise  from  an  accidental 
repair  of  the  ship  is  not  near  so  strong  as  a  certain  necessary  consequence  of 
the  ordinary  voyage,  which  the  parties  could  not  but  have  in  their  direct  and 
immediate  contemplation.  Here  the  defendants  knew  that  the  ship  must  be 
heeled,  cleaned  and  refitted  in  the  river  Canton;  tliey  knew  that  the  tackle 
would  be  then  put  into  the  bank-saul;  they  knew  it  was  for  the  safety  of  the 
ship,  and  prudent  that  they  should  be  put  there.  Had  it  been  an  accidental 
necessity  of  refitting,  the  master  might  have  justified  taking  them  out  of  the 
ship,  ex  justd  causa:  but  describing  the  voyage  is  an  express  reference  to 
the  usual  manner  of  making  it  as  much  as  if  every  circumstance  had  been 
mentioned.  Was  the  chance  varied  by  the  fault  of  the  master  .'^  It  is  impos- 
sible to  impute  any  fault  to  him.  Is  this  like  a  deviation.''  No,  it  is  ex 
justa  causa,  which  always  excuses.  Had  the  assurers  in  this  case  been 
asked,  whether  the  tackle  should  be  put  in  the  bank-saul ;  they  must,  for  their 
own  sake,  have  insisted  that  it  should.  They  *would  have  had  p  ^n„  -, 
reason  to  complain,  if  from  their  not  having  had  them  put  there,  ^  J 

a  misfortune  had  happened.  In  such  a  case,  the  master  would  have  been  to 
blame,  and  by  his  fault  would  have  varied  the  chance.  They  have  taken  a 
price  for  standing  in  the  plaintifTs'  place  as  to  any  losses  he  might  sustain  in 
performing  the  several  parts  of  the  voyage,  of  which  this  was  known  and 
intended  to  have  been  one.  Therefore,  we  are  all  of  opinion,  that  in  every 
light,  and  in  every  view  of  the  case,  in  reason  and  justice,  and  within  the 
words,  intent  and  meaning  of  this  policy,  and  within  the  view  and  contempla- 
tion of  the  parties  to  the  contract,  the  assurers  are  liable  for  this  loss." 

In  an  assurance  upon  a  Greenland  ship,  it  became  a  question  whether  the 
lines  and  tackle  employed  in  the  fishery  in  those  seas  could  be  recovered  under 
a  policy  made  upon  the  "'ship,  tackle  and  furniture."  It  was  the  case  of 
Hoskins  v.  Fickersgill,  (a)  and  came  before  the  Court  upon  a  motion  for  a 
new  trial,  and  the  Judges  were  unanimously  of  opinion  that  they  were  not 
protected  by  the  policy  not  being  part  of  "the  ship's  tackle  or  furniture." 
And  in  the  case  of^  Gale  v.  Laurie,  (b)  C.  J.  Abbott  says,  "these  stores  are 
not  considered  as  covered  by  an  ordinary  policy  on  the  ship. 

"But  insurance  is  a  matter  of  contract,  and  the  construction  of  the  contract 
depends  in  many  cases  upon  usage.  And  the  construction  of  a  policy  can 
furnish  no  rule  for  the  construction  of  this  act  of  Parliament,  which  was  passed 
for  purposes  of  a  different  nature,"  (53  Geo.  H,  c.  159.) 

But  the  Courts  of  law  will  not  extend  the  constructions  which  they  have  put 
upon  this  contract,  so  as  to  allow  a  person  to  recover  for  the  loss  of  that  which 
he  never  intended  to  insure :  for  instance,  it  cannot  be  allowed  to  the  owner 
of  a  ship  who  has  insured  the  "ship"  merely  that  he  should  be  capable  of 

(a)  B.  R.  23  Geo.  3,  East.  T.  (b)  5  B.  &  C.  156. 


50  UPON  THE  BODY,  TACKLE,  ETC.  OF  THE  SHIP. 

recovering  the  loss  of  a  cargo  laden  thereon,  or  extraordinary  wages  paid  to 
r  *ftq  1  ^^^^  seamen,  or  provisions  *consumed  hy  the  detention  of  the  ship 
L  J  longer  than  it  was  expected.     MoUoy  [a]  says,  "that  if  a  mer- 

chant insure  a  '  ship'  generally,  and  the  '  ship'  then  happens  to  be  laden,  and 
is  afterwards  lost,  the  insurer  shall  not  answer  for  the  goods,  but  only  for  the 
'ship.'"  This  rule  of  insurance  is  not  contradicted  by  any  foreign  jurists.  (/;) 
We  come  now  to  consider  some  of  the  decisions  in  this  country  on  the  above 
rule. 

The  first  important  case  that  requires  our  notice,  is  that  of  Fletcher  and 
others  v.  Poole,  (o)  In  an  insurance  upon  the  "ship  Tartar.,''''  at  and  from 
London  to  Neivcastle  and  Marseilles.,  and  at  and  from  Marseilles  to  her  dis- 
charging port  or  ports  in  the  JVest  Indies,  (Jamacia  excepted)  the  facts  were, 
that  being  distressed  she  bore  away  for  Minorca,  and  put  into  Port  Mahon, 
where  the  captain  obtained  leave  from  the  Vice  Admiralty  Court  to  have  his 
ship  surveyed,  in  consequence  of  which  she  was  long  detained ;  and  the  action 
was  brought  to  recover  the  extraordinary  wages  and  the  provisions  expended 
during  the  detention  for  these  repairs.  Lord  Mansfield  was  of  opinion,  that 
such  articles  as  sailors''  tvages  and  provisions  while  a  ship  is  detained  to  refit, 
can  never  be  allowed  as  a  charge  against  the  assurer  on  "ship,"  and  a  verdict 
was  accordingly  given  for  the  defendant.  In  Ede7i  v.  Poole,  (d)  the  action  was 
of  a  like  description,  on  a  policy  of  insurance  "on  the  ship  and  goods  from 
Ostend  to  Dominique.''^  The  following  were  the  facts  of  the  case:  that  the 
ship  met  with  bad  weather,  and  was  in  great  distress  :  that  the  crew  threatened 
to  take  the  command  from  the  captain  unless  he  would  make  for  the  next  port ; 
that  he  then  went  to  Ferroll  to  repair  his  ship,  and  that  by  the  time  the  repairs 
were  done  the  crew  forsook  her ;  that  he  then  got  another  crew,  and  at  the 
moment  he  was  going  to  sail,  the  Spanish  governor  stopped  him  ;  that  after 
a  detention  of  thirty-seven  days  she  was  discharged.  This  action  was  brought 
r  -on  1  ^*^''  *^^  ^expense  incurred  by  tcages,  provisons,  S,-c.,  during  the 
L  J  demurrage  at  Ferroll.     On  the  part  of  the  assurer  it  was  contended, 

and  so  held  by  Mr.  J.  Buller,  Avho  presided  upon  that  trial,  that  the  freight 
and  not  "  the  ship''''  were  liable  for  this  loss,  and  that  the  charge  of  demurrage 
could  not  be  allowed  upon  this  policy.     The  plaintiff  was  nonsuited. 

The  same  principle  was  upheld  in  the  case  of  Robertson  v.  Fiver,  [a]  Avhich 
was  a  similar  action  of  insurance  on  the  ship  Dumfries,  "at  and  from  London 
to  Africa.''''  In  coming  from  thence  on  her  way  to  the  West  Indies,  slie 
stopped  at  Barbadoes  in  December,  1781,  for  the  purpose  of  watering,  at 
which  island  an  embargo  was  laid  on  all  ships  by  order  of  Lord  Hood,  the  com- 
mander-iu-cliief  on  the  station.  The  action  was  brought  to  recover  from  the 
assurer  upon  "sliip"  the  additional  wages  paid  to  the  seamen,  and  the  charges 
for  provisions  during  this  detention.  Mr.  J.  Buller^  at  the  trial,  was  of  opin- 
ion that  the  only  damage  proved,  l)eing  items  for  v/ages,  provisions,  and  demur- 
rage during  the  detention,  could  not  be  recovered  under  tlie  policy  on  "the 
ship"  only.  To  make  the  underwriter  liable  there  must  be  a  loss  of  the  ship, 
for  the  policy  is  on  the  body  of  the  ship  only  j  and  if  she  arrives  at  her  port  of 
delivery,  be  the  voyage  ever  so  long,  you  cannot  recover  under  such  a  policy. 
The  plaintiff  was  nonsuited.  The  following  Term  the  whole  Court  refused  a 
rule  made  to  set  aside  the  nonsuit:  Lord  Mansfield  saying,  "There  is  no 
authority  to  show  that  on  this  policy  tlio  assured  can  recover  for  such  a  loss, 
but  it  is  contrary  to  the  constant  practice.     On  a  policy  on  a  'siiip,'  sailors' 


(a)  B.  2,  c.  7,  s.  8.  (It)   Rocc.  d'Assecur.  Not.  16. 

(c)  Sit.  after  East.  1769.     Parkins.  115.      (/)  Sit.  after  Hil.  1785.     Id.  117. 
(a)  1  T.  R.  127. 


UPON  THE  BODY,  TACKLE,  ETC.  OF  THE  SHIP.  51 

wages  or  provisions  are  never  allowed ;  tlie  insurance  is  on  the  body  of  the  ship, 
tackle,  and  furniture,  not  on  tlic  voyage  or  crew.  In  this  it  is  admitted  that 
there  was  no  damage  done  to  the  ship,  tackle,  or  furniture."  Mr.  J.  B idler : 
"I  take  it  to  be  perfectly  well  setded,  that  you  cannot  recover  on  a  policy  on 
'the  body  of  die  ship'  for  seamen's  wages  or  provisions."  These  are  not  the 
subject  of  the  insurance.  The  case  put  *at  the  Bar  proves  the  rule  j  p  ^g^  -, 
for  if  the  sliip  had  been  detained  in  consequence  of  any  injury  L  J 

which  she  had  received  in  a  storm,  though  the  underwriter  must  have  made 
good  that  damage,  yet  you  could  not  have  come  upon  him  for  the  amount  of 
wages  and  provisions  during  the  time  she  was  so  repairing.  Here  the  ship 
itself  is  safe,  and  the  Court  only  look  to  the  thing  itself,  which  is  the  subject  of 
insurance  :  and  the  wages  and  provisions  are  no  part  of  the  thing  insured.  In 
the  case  of  Brough  v.  fPliitmore,  (a)  which  was  an  action  on  a  policy  of  insu- 
rance on  an  '■'■East  India  and  China  ship,"  and  on  the  "tackle,  ordnance, 
ammunition,  artillery,  and  furniture  of  the  ship,"  at  the  trial  it  appeared  that 
whilst  the  ship  was  lying  off  Bank-said  Island,  in  the  river  Canton,  it  became 
necessary  to  refit  her,  for  whieli  purpose  the  stores  and  provisions  were  taken 
out  and  "put  into  a  warehouse,  where  they  were  destroyed  by  accidental  fire. 
It  was  admitted  that  the  policy  covered  all  the  articles  but  the  provisions,  Avhich 
were  merely  for  die  ship's  crew.  It  was  contended  for  the  defendant,  that  the 
provisions  were  not  protected  by  the  insurance  ;  but  one  of  the  jury  said,  that 
it  had  been  determined  in  Lord  Mansfield's  time,  {h)  that  they  came  under  the 
word  "  furniture,"  under  which  decision  the  merchants  had  since  always  acqui- 
esced. Tlie  i)laintiffs  obtained  a  verdict,  which  was  afterwards  upheld  by  the 
Court  above,  (c)  Lord  Kenyan  said,  "On  the  trial  of  this  cause,  I  had  nothing 
to  guide  my  judgment  on  the  construction  of  this  instrument  but  the  words  of 
the  policy;  and  when  it  was  stated  that  "provisions"  Avere  included  in  the 
word  "furniture,"  I  confess  I  was  somewhat  at  a  loss  to'  know  to  what  extent 
the  underwriters  were  liable  on  words  so  indefinite  as  those  which  are  used. 
But  then  I  thought,  and  still  continue  to  think,  that  the  rule  of  law  is  to  be 
given,  not  by  merchants  but  by  the  Court,  though  when  a  question  p  ^g^  -, 
*arises  on  the  construction  of  the  words  of  an  instrument  which  ^  J 

are  in  themselves  ambiguous,  it  is  a  matter  fairly  within  the  province  of  those 
who  alone  act  upon  these  instruments  to  declare  the  meaning  of  them  ',  and  I 
remember  it  was  said  many  years  ago,  that  if  Lombard  street  had  not  given  a 
construcdon  to  policies  of  insurance,  a  declaration  on  a  policy  would  have  been 
bad  on  general  demurrer,  but  that  the  uniform  practice  of  merchants  and  under- 
writers had  rendered  them  intelligible.  The  question  here  arises  upon  the 
meaning  of  the  word  "furniture."  One  of  the  jurymen  said,  and  in  that  he 
is  now  confirmed,  that  according  to  the  understandings  of  those  who  enter  into 
these  contracts,  it  includes  the  provisions  for  the  use  of  die  crew  ;  and  this  ship 
being  at  Canton,  it  became  necessary  to  refit  her,  and  take  out  all  her  goods, 
and  land  on  this  island,  where  the  accident  happened,  by  which  these  provi- 
sions, with  die  rest  of  the  goods,  were  burned.  Then,  if  these  provisions  be 
insured  as  part  of  the  outfit  of  the  ship,  and  Uiey  were  consumed  by  one  of  the 
perUs  insured  against,  there  is  an  end  of  the  question  :  a  loss  has  happened 
widiin  die  meaning  of  the  policy,  and  the  defendant  is  liable.  If  Uiis  decision 
were  to  militate  against  any  determinadon,  or  even  obiter  dictum  of  Lord 
Mansfield,  I  should  have  hesitated  for  some  time  before  I  delivered  my  opinion. 
But  the  case  of  Robertson  v.  Ewer  is  clearly  distinguishable  from  the  present : 


(a)  4  T.  R.  206. 

(b)  See  Lord  Mansfield's  words  in  Robertson  v.  Ewer,  I  T.  R.  ante,  p.  90. 

(c)  The  provisions  had  not  been  eaten  but  destroyed  by  a  peril  insured  against  "fire." 


52  UPON  THE  BODY,  TACKLE,  ETC.  OF  THE  SHIP. 

here  the  goods  were  consumed  by  an  accident  by  fire  on  board  the  ship,  (for  the 
island  was  for  this  purpose  equivalent  to  the  ship)  and  within  the  meaning  of 
the  policy  of  insurance  ;  but  in  that  case  they  were  consumed  by  the  negroes 
during  the  detention  of  the  ship." 

Although  it  might  have  been  hoped  that  Lord  MansfiehV s  decision  in  the 
preceding  case  of  Fletcher  v.  Poole,  supported  as  we  have  seen  it  to  be  by  sub- 
sequent well  considered  important  cases,  would  have  set  at  rest  the  endeavour, 
on  the  part  of  the  assured,  or  their  advisers,  any  further  attempt  to  review  the 
reasonable  nature  of  the  law  pronounced  in  that  case ;  we  find,  however,  this 
r  *Q^  ~l  *doctrine  of  Lord  Mansfield^ s  disputed  in  a  very  recent  case  of 
L  J  Devaux  v.  Salvador,  (a)  after  the  question  had  laid  at  rest,  and 

had  not  been  mooted  for  many  years.  It  was  an  action  on  a  policy  of  insu- 
rance on  "ship,"  in  which  the  assured  attempted  to  charge  the  underwriters 
with  a  sum  of  money  expended  in  additional  wages,  paid  to  the  crew  whilst  the 
ship  was  detained  by  the  necessity  of  repairing  certain  damage,  done  by  the 
perils  of  the  sea,  and  likewise,  with  a  sum  of  money  which  the  ship  insured 
had  to  pay  another  ship,  with  which  there  had  been  a  collision,  upon  a  setde- 
ment  made  by  the  Court  of  Admiralty,  at  Calcutta.  Upon  the  trial,  the  Lord 
Chief  Justice  Denman  told  the  jury  that  the  underwriters  were  not  liable  for 
either  of  these  items,  and  the  defendant  had  a  verdict.  A  motion  was  after- 
wards made  for  a  rule  to  shew  cause  why  the  verdict  should  not  be  entered  for 
the  plaintiff  for  the  two  sums  in  question.  The  Court  took  time  to  consider 
the  matter,  and  on  a  subsequent  day,  30th  Jan.  1836,  Hil.  Term,  the  judgment 
of  the  Court  was  delivered  by  Lord  Denman,  C.  J.  "  This  was  amotion  for 
a  new  trial  in  an  action  of  assumpsit,  tried  before  me  at  Guildhall,  on  the  insu- 
rance of  a  'ship'  for  loss  by  perils  of  the  sea.  The  jury  found  a  verdict 
according  to  my  directions,  excluding  the  expense  for  wages  and  provisions 
incurred  from  the  time  of  her  repairing  damage  sustained  from  a  storm,  and 
excluding  also  a  sum  of  money  Avhieh  the  owners  had  paid  in  consequence  of 
some  proceedings  commenced  in  the  Court  of  Admiralty,  at  Calcutta,  in  con- 
sequence of  an  accidental  collision  with  another  in  the  Hoogly  river.  The 
new  trial  was  moved  for  on  the  ground,  that  both  these  heads  of  damage  ought 
to  have  been  taken  into  account  by  the  jury.  We  think  it  clear,  on  authority, 
that  the  former  item  ought  not  to  be  allowed.  As  long  ago  as  1769,  in  Fletcher 
V.  Poole,  ib)  the  point  was  decided  by  Lord  Mansfield  at  Nisi  Prius.  The 
r  *QJ.  "1  ^<^<^trine  has  been  cited  in  the  text  books  ever  *since  that  period, 
L  J  and  is  expressly  recognized  by  Buller,  J. ,  in  Robertson  v.  Ewer,  [a) 

The  facts  of  that  case  did  not  indeed  require  the  doctrine,  which  is  merely 
assumed  in  the  argument  of  that  learned  Judge  to  illustrate  his  opinion  on  the 
case  then  before  the  Court.  Mr.  Maule,  therefore,  urged  that  the  law  rested 
on  a  single  decision  of  Lord  Mansfield  at  Nisi  Prizes  ;  but  when  we  consider 
the  higli  authority  of  that  great  master  of  insurance  law,  tliat  that  case  was 
unquestioned,— that  it  received  the  sanction  of  so  eminent  a  lawyer,  who  treats 
it  as  clear  enough  to  lay  the  foundation  of  a  principle  from  analogy ;  when  it 
is  fully  adopted  in  the  works  of  distinguished  writers  on  the  subject ;  and  above 
all,  when  we  find  no  trace  of  even  a  claim  being  set  up  inconsistent  with  it  for 
nearly  seventy  years,  though  events  must  have  afforded  the  opportunity  many 
thousand  of  times,  we  think  this  point  must  be  regarded  as  fully  established, 
and  that  we  should  not  be  justified  in  casting  any  doubt  upon  it.  The  second 
point  appears  to  be  entirely  new,  which  circumstance  is  not  so  strong  an  argu- 
ment against  it  as  against  the  former  claim,  because  the  event  is  likely  to  have 

(a)  4  A.  &  E.  420.  (6)  Ante,  p.  89. 

(a)  Ante,  p.  90. 


UPON  THE  BODY,  TACKLE,  ETC.  OF  THE  SHIP.  53 

been  of  much  less  frequent  occurrence.  But  if  we  look  for  the  principle  on 
which  Fletcher  v.  Poole  was  decided,  it  must  obviously  be  that  well-  known 
maxim  of  our  law,  in  jure  non  remota  causa  sed  proxima  spectatur.  '  It 
were  infinite,' says  Bacon,  [b)  'for  the  law  to  judge  the  causes  of  causes; 
therefore,  it  contcnteth  itself  with  the  immediate  cause,  and  judgeth  of  acts  by 
that,  without  looking  to  any  farther  degree.'  Such  must  be  understood  to  be 
the  mutual  intention  of  the  parties  to  such  contracts.  Then  how  stands  the 
fact }  The  ship  insured  is  driven  against  another  by  stress  of  weadier  5  the 
injury  which  she  thus  sustains  is  admitted  to  be  direct,  and  the  underwriters  are 
liable  for  it.  But  the  collision  causes  the  ship  insured  to  do  some  damage  to 
the  other  vessel :  and  whenever  this  effect  is  produced,  both  vessels  being  in 
fault,  a  positive  rule  of  the  *Court  of  Admiralty  requires  the  damage  p  ^^-  -, 
done  to  both  ships  to  be  added  together,  and  the  combined  amount  L  J 

to  be  equally  divided  between  the  owners  of  the  two.  It  turns  out  that  the  ship 
insured  has  done  more  damage  than  she  has  received,  and  is  obliged  to  pay  the 
owners  of  the  other  ship  to  some  amount  under  the  rule  of  the  Court  of  Admi- 
ralty. But  this  is  neither  a  necessary  nor  proximate  effect  of  the  perils  of  the 
3ea,  it  grows  out  of  an  arbitrary  provision  in  the  law  of  nations,  from  views  of 
general  expediency,  not  as  dictated  by  natural  justice,  nor  (possibly)  quite  con- 
sistent witli  it ;  and  can  no  more  be  charged  on  the  underwriters  than  a  penalty 
incurred  by  contravention  of  the  revenue  laws  of  any  particular  state,  which 
was  rendered  inevitable  by  the  perils  insured  against.  We  think,  therefore, 
that  no  rule  ought  to  be  granted."     Rule  refused. 

Havinof  now  considered  the  law  relating  to  what  can  or  what  cannot  be  re- 
covered  from  the  underwriters  on  a  policy  on  "the  body,  &c.  of  the  ship  :" 
we  are  now  to  consider,  secondly,  what  is  meant  by  the  application  of  the  term 
"good,"  which  is  used  in  the  policy  with  regard  to  the  ship,  which  is  to  be  the 
"  sul)ject  of  insurance,"  either  itself,  or  which  is  to  carry  the  goods  which  are 
to  be  the  subject-matter.  This  term,  as  applying  to  the  ship  itself,  can  mean 
nothing  more  or  less  than  the  allegation  that  the  ship  (to  be  insured)  is  good 
enough,  (that  is  to  say  of  sufficient  strength,  stability  and  excellence  in  its  con- 
struction and  condition  at  the  time  when  the  risk  of  the  underwriters  is  to  com- 
mence upon  it ;)  and  that  it  is  in  fact  good  and  capable  enough  to  perform  the 
voyage  intended,  (reserving  the  possibility  of  the  losses  which  must  happen  in 
consequence  of  the  perils  which  the  underwriters  take  upon  themselves.)  This 
term  "good"  is,  in  the  phraseology  of  mercantile  and  nautical  affairs,  included 
in  what  the  law  means,  when  it  is  called  the  "seaworthiness  of  a  vessel,"  and 
which  we  shall  have  occasion  more  particularly  to  specify  in  what  it  consists. 
It  may,  however,  be  prefaced,  by  saying,  that  as  this  declaration  comes  early 
in  the  body  of  the  *policy,  so  is  it  of  the  first  importance,  and  of  r-  ^f.^  -, 
the  essence  of  this  contract,"  that  the  vessel  in  question  shall  be  at  L  J 

the  time  of  executing  the  policy,  or  at  least  at  the  moment  of  the  commence- 
ment of  the  underwriter's  risk  "good,"  that  is,  "seaworthy"  for  the  "voyage 
insured." 

I  shall  first  mention  some  authorities  to  shew  how  strongly  the  Judges  have 
always  spoken  when  the  question  of  the  "seaworthiness"  of  the  ship  at  the 
time  of  the  insurance  has  come  into  controversy.  In  the  case  of  Carter  v. 
Boehni,  («)  which  was  decided  in  Easter  Term,  1766,  Lord  Mansfield,  in  dis- 
coursing upon  the  case  then  before  him,  affirms  the  law  respecting  tlie  necessity 
of  a  ship  being  "  seaworthy"  when  she  is  insured  :  for  he  says,  "The  utmost 
that  can  be  contended  for  is,  that  the  underwriters  trusted  that  the  fort  being  in 


(6)  Maxims  of  the  Law,  p.  35,     Law  Tacts, 
(a)  3  Burr.  1913. 


54  UPON   THE    BODY,  TACKLE,  ETC.   OF   THE   SHIP. 

the  condition  in  which  it  ought  to  be ;  in  like  manner  as  it  is  taken  for  granted 
that  a  ship  insured  is  'seaworthy.'"  And  again,  his  Lordship,  in  a  later  case, 
where  the  same  principle  was  much  relied  on,  said,  "By  an  implied  warranty 
every  ship  insured  must  be  tight,  staunch  and  strong  ;  but  it  is  sufficient  if  she 
be  so  at  the  time  of  her  sailing.  She  may  cease  to  be  so  in  twenty  hours  after 
her  departure,  and  yet  the  underwriter  will  continue  liable."  (b) 

The  late  Mr.  J.  Park,  in  his  treatise,  (c)  says,  "that  the  most  material  case 
(at  the  time  he  wrote)  on  this  part  of  our  subject  was  that  of  the  Mills  Frigate, 
which  underwent  a  variety  of  discussion  in  several  Courts,  and  in  which  all 
the  principles  on  which  this  doctiine  is  founded  were  fully  discussed."  I  shall 
take  the  liberty  to  copy  what  is  said  of  this  case  from  the  learned  Judge's  trea- 
tise. He  says  : — "  I  have  used  my  utmost  endeavours  to  procure  a  copy  of 
the  opinions  of  the  Judges  upon  that  case,  but  they  have  been  ineffectual ; 
r  *q7  ~i  therefore  the  reader  must  be  satisfied  Avith  a  full  statement  *of  the 
>-  -^  circumstances,  as  they  appeared  upon  the  demurrer  to  the  evi- 

dence, (fl) 

"This  was  an  action  on  a  policy  of  insurance,  lost  or  not  lost,  at  and  from 
the  Leeward  Islands  to  London,  warranted  to  sail  on  or  before  the  26th  of 
July,  upon  any  kind  of  goods,  wares,  and  merchandises ;  and  also  upon  the 
body,  tackle,  &c.,  of  and  in  the  good  ship  or  vessel  called  the  Mills  Frigate, 
beginning  the  adventure  on  the  goods  from  the  loadinor  thereof  on  board  the  said 
ship  at  'SY.  Kitfs,  and  upon  the  ship  from  her  arrival  at  the  Leeward  Islands. 
The  defendant  undertakes  to  indemnify  against  the  usual  risks  for  a  premium 
of  2l.  10s.  per  cent.  The  loss  was  described  in  the  first  count  of  the  decla- 
ration, in  these  words: — 'That  the  said  ship,  after  her  departure  from  Nevis 
on  her  voyage,  and  during  her  said  voyage,  sailing  and  proceeding  on  the  high 
seas  by  and  through  the  force  of  winds  and  tempestuous  weather,  and  by  and 
through  the  mere  perils  and  dangers  of  the  seas,  sprang  divers  leaks,  and 
became  very  leaky,  crippled,  bulged,  disjointed,  split,  and  wholly  lost.'  In 
the  second  count  the  loss  is  alleged  thus  : — 'By  and  through  the  mere  perils 
and  dangers  of  the  seas,  and  by  the  starting  and  loosening  of  one  or  more 
plank  or  planks  of  the  said  ship,  and  by  accidentally  springing  one  or  more 
leak  or  leaks,  the  said  ship  became  very  leaky,  crippled,  &c.,  and  totally 
unable  to  proceed  on  or  perform  the  said  voyage.'  There  were  two  other 
counts  in  the  declaration  upon  a  policy  on  freight,  to  recover  from  the  under- 
writer the  amount  of  his  insurance  upon  that  also  ;  and  a  fifth  count  for  money, 
had  and  received  to  the  plaintiff's  use.  The  defendant  pleaded  the  general 
issue,  and  paid  the  premiums  into  Court. 

r  *Q8  "1  'J"his  cause  came  on  to  be  tried  before  Lord  Chief  Baron  Parher, 
L  J  *and  the  defendant  demurred  to  the  evidence  produced  on  the  part 

of  the  plaintiff.  The  demurrer  follows  in  these  words  :■ — 'Thereupon  the 
said  John  and  Thomas  Mills  (the  plaintiffs)  show  in.  evidence  to  the  jury  to 
prove  and  maintain  the  issue  within-mentioned  on  their  part,  to  wit,  that  the 
defendant  underwrote  the  policy  of  insurance,  and  that  the  plaintiffs  Avere 
interested  to  the  amount  as  in  the  declaration  is  mentioned :  that  the  ship  in 
question  was  a  French  built  ship,  and  known  to  be  so  to  the  defendant  at  the 
time  he  undeVwrote  the  said  policy :  that  the  timbers  of  French  ships  are 


(!j)  Eden  V.  Parkinson,  DoujtI.  732.  (c)  Page  160. 

(«)  Mills  and  anotlicr  v.  Roebuck,  in  the  Exchequer.  Before  this  action  in  the  Exche- 
quer was  lirouc;ht,  an  action  upon  the  same  policy  had  been  tried  in  the  Court  of  Common 
Pleas  before  Lord  Camden,  who  directe<l  the  jury  to  find  for  tiie  plaintilV.  But  upon  a 
motion  for  a  new  trial,  he  altered  his  opinion,  and  the  Court  unanimously  determined  that 
the  ship,  not  being  seaworthy,  the  plaintitfs,  however  innocent  they  might  be,  could  not 
recover. 


UPON   THE    BODY,  TACKLE,  ETC.   OF   THE    SHIP.  55 

usually  fastened  with  iron  bolts  or  spikes,  which  are  liable  to  grow  rusty :  and 
when  the  same  are  grown  rusty  the  timbers  of  such  ships  frequently  become 
loose  at  once,  and  tlie  ships  are  rendered  incapable  of  bearing  the  sea,  Avithout 
any  perceptible  symptoms  of  decay :  that  the  ship  in  question  was  purchased 
by  the  plaintills  in  the  year  1757;  that  since  that  time  she  has  been  generally 
employed  by  the  plaintiffs,  who  are  fVest  India  merchants,  in  that  trade ;  and 
large  sums  have  consequendy  been  insured  on  her  and  her  cargoes :  that  in 
February,  1764,  lieing  bound  to  the  Leeward  hlands,  and  back  again  to 
London,  she  sailed  on  her  voyage ;  that  before  she  sailed  from  I^ondon  on 
that  voyage,  the  plaintiffs  ordered  the  captain  to  have  every  thing  done  to  the 
ship  which  he  should  think  proper  to  repair  her ;  that  in  pursuance  of  such 
orders,  the  sliip  was  put  into  dock  and  repaired,  where  the  ship-carpenter  did 
all  sucli  repairs  to  lier  as  he  was  ordered,  the  expenses  of  which  amounted  to 
about  100/.,  of  which  about  30/.  was  for  the  sheathing  and  other  repairs  of 
her  hull,  and  die  residue  in  her  upper  works :  that  nothing  more  appeared  to 
the  ship-carpenter  or  the  captain  to  be  wanting  to  make  her  fit  and  complete 
for  the  said  voyage ;  but  her  iron  bolts  and  spikes  were  not  then  examined, 
which  could  not  be  done  without  taking  off  her  sheathing — an  act  never  done 
Avhere  (as  the  case  is  here)  the  ship  had  been  sheathed  a  litde  time  before  ; 
that  George  Hayley,  Esq.,  die  first  underwriter  in  this  policy,  and  many  other 
persons  by  whom  policies  of  insurance  are  generally  underwritten,  p  ^..gg  -. 
keep  *a  register  in  which  all  ships  usually  insured  by  them  are  L  -* 

entered,  with  an  account  of  the  age,  construction,  and  visible  goodness  of  the 
vessels,  and  to  whom  they  belong,  and  also  employ  a  surveyor,  whose  busi- 
ness it  is  to  survey  such  ships :  that  the  ship  in  question,  at  the  time  of  under- 
writing the  policy,  and  long  before,  had  been  entered  in  such  register ;  and, 
previous  to  lier  last  outward-bound  voyage,  had  been  surveyed  by  one  Thomas 
Whitewood,  who  was  then  employed  by  the  said  George  Hayley,  and  other 
underwriters,  as  such  surveyor;  and,  as  far  as  appeared  to  the  said  Thomas 
Whitewood,  was  in  good  condition,  and  perfectly  fit  to  undertake  a  voyage  to 
and  from  the  I^ecivard  Islands;  but  the  surveyor  did  not,  neither  could  he 
examine  the  bolts  and  spikes,  for  the  reasons  aforesaid,  but  did  survey,  as 
far  as  is  ever  practised  in  such  cases :  that  the  said  George  Hayley  had  often 
before  underwrote  policies  on  the  said  ship  and  her  cargoes ;  and  the  witness, 
who  was  the  insurance-broker,  said  he  believed  Mr.  Hayley  knew  as  much  of 
the  condition  of  the  said  ship  as  the  plaintiffs  did,  and  particularly  on  the  out- 
ward-bound voyage  to  the  Leeward  Islands,  he  underwrote  400/.  on  this  ship: 
that  in  such  last  outward-bound  voyage  the  ship  met  with  a  great  deal  of  bad 
weadier,  was  very  leaky,  and  could  not  get  into  Madeira,  where  she  was 
ordered  to  touch,  but  Avas  obliged  to  bear  away  for  the  island  of  Nevis:  that 
she  arrived  at  the  island  oi  Nevis,  on  the  first  o^  Jlpril,  1764,  and  from  thence 
went  to  the  island  of  Saint  Christopher,  Avhere  she  delivered  her  outward- 
bound  cargo,  and  had  such  repairs  done  to  her  as  were  then  thought  necessary, 
and  to  all  appearance  put  into  a  proper  condition  for  her  voyage  home  ;  but 
her  bolts  and  spikes  were  not,  nor  could  be  examined  there :  that  about  the  end 
of  the  said  month  of  Jlpril,  the  ship  sailed  from  St.  KitVs  to  Nevis,  where 
the  captain  had  been  promised  a  loading  for  her  home :  that  on  her  arrival  at 
N'evis,  the  planters,  knowing  she  had  been  leaky  in  her  outward-bound  voy- 
age, were  not  wUling  to  put  sugars  on  board  her ;  and  that,  in  order  to  satisfy 
the  planters  there  that  she  was  in  a  proper  condition  to  carry  a  p  *iqq  -i 
*cargo  of  sugars  to  I^ondon,  they  proposed  to  the  captain,  as  a  >-  J 

measure  which  would  be  fully  satisfactory  to  them,  that  he  should  submit  the 
ship  to  be  surveyed  by  all  the  captains  then  in  the  harbour,  being  six  in  num- 
ber; and  told  him  that  if  they  should  report  her  to  be  fit  for  a  voyage  to 
London,  they  would  then  load  her  with  sugars  :  that  die  captain  did  submit  to 


56  UPON  THE  BODY,  TACKLE,  ETC.  OF  THE  SHIP. 

such  survey,  though  it  would  have  been  for  the  interest  of  the  said  captains  to 
report  the  sliip  unfit  for  the  voyage,  as  by  that  means  they  would  have  had  an 
opportunity  of  gaining  more  freight  and  sooner  :  that  on  the  8th  day  of  May, 
1764,  the  said  captains,  after  having  surveyed  her  carefully,  but  without 
examining  her  bolts  and  spikes,  which  could  not  be  done  there,  signed  the  fol- 
lowing report: — '■Nevis,  May  8th,  1764.  At  the  request  of  Captain  George 
Finch,  of  the  ship  Mills  Frigate,  we,  the  subscribers,  did  repair  on  board  the 
said  ship,  and,  after  due  examination,  it  did  appear  to  us  that  the  occasion  of 
the  ship's  making  more  water  than  usual  on  her  voyage  from  London  to  this 
place,  was  occasioned  by  some  neglect  in  caulking  the  said  ship,  which  may 
very  easily  be  made  tight,  the  said  ship  otherwise  appearing  to  us  to  be  strong 
and  sound;  and  when  caulked,  we  are  of  opinion,  will  be  fully  sufficient  to 
carry  a  cargo  of  sugars  to  London.  John  Shepherd,  &c. '  That  afterwards 
the  ship  was  caulked,  according  to  the  said  report,  and  that  thereupon  the 
planters  sent  their  sugars  on  board,  and  the  ship  Avas  soon  loaded  with  about 
three  hundred  and  seventy  hogsheads  of  sugar :  that  during  the  time  of  her 
loading,  and  until  and  at  the  time  of  her  sailing,  which  was  about  two  months, 
the  ship  continued  tight,  appeared  to  be  in  good  condition,  and  made  no  more 
water  than  the  best  ships  usually  do,  and  are  expected  to  do :  that  the  ship 
sailed  from  Nevis,  on  the  26lh  day  of  July,  1764,  about  eight  o'clock  in  the 
evening,  and  the  next  day,  about  four  o'clock  in  the  afternoon,  without  any 
bad  weather,  or  extraordinary  swell  of  the  sea,  she  sprang  a  leak,  and  the 
captain  was  obliged  to  bear  away  for  *S'/.  Christopher^ s,  where  he  arrived  on 
r  *101  1  ^^^  '^  July:  that  on  his  arrival  there,  he  got  the  ship  unloaded, 
L  -"to  *see  what  was  the  matter  with  her,  when  it  appeared  that  she 

had  started  a  plank :  that  he  thereupon  applied  to  the  Judge  of  the  Court  of 
Vice  Admiralty  for  a  warrant  to  survey  the  ship,  and  a  warrant  Avas  granted  to 
four  captains  and  two  ship -carpenters,  or  any  three  of  tliem ;  four  of  whom 
did,  according  to  such  warrant,  survey  the  said  ship,  and  did  report,  that  she 
was  unfit  to  proceed  on  her  voyage,  without  being  thoroughly  repaired,  and 
that  the  expense  of  so  repairing  her  there  would  amount  to  more  than  the 
value  of  the  ship  and  freight ;  and  she  was,  therefore,  condemned  by  the  said 
Court  as  unfit  for  the  said  voyage :  that  some  of  the  iron  bolts  and  spikes  with 
which  the  timbers  of  the  ship  in  question,  like  other  French  built  ships,  were 
fastened,  were  broken  in  the  plank  that  was  so  started,  which  the  captain  and 
the  said  surveyors  felt  by  passing  up  their  hands  between  the  plank  and  the 
ship,  and  which  appeared  upon  farther  opening  tlie  ends  of  the  plank,  and  that 
the  said  plank  was  started  from  one  end  to  the  other :  that  it  was  owing  to  the 
said  bolts  and  spikes  being  grown  rusty  and  decayed,  as  then  appeared  to  the 
captain  and  surveyors,  that  such  plank  started :  that  he  believed  the  surveyors 
who  condemned  her  thought  the  same ;  wherefore,  and  supposing  the  other 
bolts  and  spikes  in  the  ship  were  also  grown  rusty  and  decayed,  thougli  that 
could  not  be  known  for  certain,  without  ripping  off  her  planks  and  making  a 
more  strict  examination,  the  surveyors  made  their  said  report  of  condemnation  : 
that  the  said  plank  was  not  taken  off,  nor  could  it  be,  without  sinking  the  ship, 
which  has  not  yet  been  broken  up,  but  continues  at  St.  Chnstopher^ s  as  a 
hulk :  that  on  the  aforesaid  account  it  was  then  concluded,  and  is  now  believed 
by  the  captain,  that  the  said  ship  was  not  fit  for  the  insured  voyage  home  at 
the  time  she  so  sailed  from  Nevis  for  I^ondon,  though,  to  all  outward  appear- 
ance, she  was  a  very  good  ship,  and,  as  he  then  believed,  proper  for  the  voy- 
age; and  such  a  ship  as  he,  from  her  outward  appearance,  should  have  had 
no  objection  to  sail  in  again;  but  had  he  known  the  decayed  condition  of  her 
said  bolts  and  spikes,  before  he  set  sail  on  his  homeward-bound  voyage,  he 
r  *\(\9  ~\  wo"''l  '^'^'^  \y-\yQ  ventured  his  life  in  her:  that  there  *is  no  dock, 
L  -^  nor  scarce  any  materials  for  repairing  ships  at  St.  Christopher'* Sy 


UPON  THE  BODY,  TACKLE,  ETC.  OF  THE  SHIP.  57 

nor  could  she  sail  to  any  other  phice  to  be  repaired ;  and  that  if  tliis  misfortune 
had  happened  in  North  Jlmerica  or  England,  where  tliore  are  proper  docks 
and  materials,  she  might  have  been  repaired  for  three  or  four  hundred  poimds : 
that  while  the  said  ship  was  first  at  St.  Christopher' s,  before  she  had  taken  in 
her  cargo,  namely,  on  the  23d  of  Jlpril,  1764,  the  captain  Avrotc  the  following 
letter  to  the  plaintiffs  : — 

*^St.  Christopher's,  ^pril  2S,  1764. 
"Gentlemen, 

"I  take  the  first  opportunity  of  acquainting  you,  that  I  arrived  iit  Nevis, 
after  a  most  dismal  passage,  on  the  first  instant.  On  the  sixth  of  March,  at 
day-break,  I  made  the  islands.  Deserts,  distant  about  four  leagues,  ran  down 
for  Madeira,  with  a  fresh  gale  at  E.  S.  E.  till  four  in  the  afternoon,  when 
being  within  a  mile  off  the  sliore,  and  judging  about  five  or  six  miles  off  Fen- 
chall  Road,  a  very  hard  and  dark  squall  took  us  suddenly  with  such  violence, 
that  I  was  obliged  to  clear  off  the  land  under  the  courses.  It  was  excessively 
hazy  the  whole  evening  after,  that  one  could  hardly  see  the  ship's  length ;  so 
that  it  would  have  been  Uie  greatest  imprudence  to  have  run  the  risk  of  over- 
shooting our  port,  or  running  ashore.  The  gale  increased,  and,  in  the  night, 
came  round  to  the  N.  E.  and  the  ship  strained  so  much  by  the  pressure  of  sail 
we  were  obliged  to  carry  on  her  in  that  great  sea,  that  it  was  with  the  utmost 
difficulty  we  could  keep  her  free.  On  the  eighth,  at  nine  in  the  morning, 
reckoning  myself  nineteen  leagues  to  leeward  of  Madeira,  our  ship  so  loosened 
that  we  could  not  carry  sail  upon  a  wind ;  and  seeing  no  probability  of  the 
wind  shifting  or  abating  enough  to  give  us  a  chance  of  beating  up,  bore  away 
for  Nevis,  judging  it  better  for  the  preservation  of  the  whole  than  to  run  any 
hazard  in  endeavouring  for  the  Canaries  in  our  weak,  leaky,  and  distressed 
condition.  I  have  consulted  with  Mr.  Cottle,  the  counsellor  here,  who  advises 
me  to  sell  tlie  flour  and  lime  at  public  vendue,  and  to  carry  the  iron  ^  ^,  „„  -■ 
*hoops,  &c. ,  back  to  England.     As  the  ship's  complaint  has  been  >-  -^ 

chiefly  in  her  upper  works,  I  am  obliged  to  have  her  new  nailed  from  the  wail 
upwards ;  and  hope  you  will  find  that  what  repairs  are  necessary  to  be  made 
here,  are  conducted  with  all  the  frugality  circumstances  will  admit  of." 

Tliat  the  plaintiffs  received  this  letter  in  London  on  the  13th  day  of  June, 
1764,  and,  a  day  or  two  afterwards,  gave  it  to  Matthew  Towgood,  an  insurance 
broker,  to  get  1,000/.  insured  on  the  freight  home  for  tlie  use  of  the  owners, 
and  250/.  on  their  fourth  part  of  the  said  ship :  that  the  said  Towgood  first 
showed  the  policy  in  question  and  the  letter  to  the  said  George  Hayley,  on  the 
19th  of  June,  1764,  who,  after  reading  over  the  letter,  asked  him  Avhat  interest 
he  had  to  insure;  to  which  the  broker  answered,  ship,  freight,  and  cargo;  and 
that  he  might  write  which  he  pleased;  that  thereupon  the  said  George  Hayley 
said  lie  would  underwrite  the  ship,  saying  she  would  come  home  safe  enough, 
notwithstanding  the  damage  which  the  said  letter  imported  she  had  received,  as 
it  was  a  summer-voyage ;  but  that  she  would  very  likely  damage  her  cargo : 
that  the  said  George  Hayley  was  going  to  underwrite  the  said  policy  for  300/. 
on  the  said  ship,  and  had  wrote  the  figure  three  :  but  on  the  said  Matthew  Tow- 
good's  telling  him,  he  was  a  bold  man  to  write  three  hundred  pounds  after  read- 
ing the  said  letter,  the  said  George  Hayley  struck  out  the  figure  three,  and 
converted  it  into  a  two,  and  accordingly  underwrote  the  said  policy  for  die  sum 
of  two  hundred  pounds  on  the  said  ship  :  that  the  said  Matthew  Towgood 
showed  the  said  letter  to  the  said  defendant  Roebuck,  and  all  the  other  under- 
writers on  the  said  policy,  before  they  underwrote  the  same;  and  the  said 
defendant  says,  that  the  evidence  aforesaid,  in  manner  and  form  aforesaid, 
shown  by  the  plaintiffs  to  the  jury,  is  not  sufficient  in  law  to  maintain  the 
issue  within  joined  on  the  part  of  the  said  plaintiffs  ;  and  that  he  the  defendant, 
to  the  evidence  aforesaid,  hath  no  necessity,  nor  by  the  law  of  the  land  is 


58  UPON  THE  BODY,  TACKLE,  ETC.  OF  THE  SHIP. 

r    *in4.     1  obliged  to  answer.     Wherefore  he  prays  judgment,  *and  that  the 
L  J  jury  may  be  discharged  from  giving  any  verdict  upon  the  issue. 

This  demurrer  was  argued  in  the  Court  of  Exchequer,  and  judgment  Avas 
there  given  in  favour  of  the  assured;  and  of  what  fell  from  the  Judges  on  that 
occasion,  I  have  been  only  able  to  procure  this  account,  "diat  judgment  was 
given  for  the  plaintiffs,  not  upon  the  points  aigued  (namely,  that  it  was  essen- 
tial that  the  ship  should  be  seaworthy,)  the  Court  being  as  to  those  of  opinion 
with  the  underwriters ;  but  because  the  evidence  did  not,  as  the  Court  thought, 
precisely  prove  that  the  ship  was  not  seaworthy,  at  the  time  of  the  insurance 
taking  place,  on  the  first  of  April,  1764,  on  her  arrival  at  Nevis,  but  only  that 
she  was  so  at  the  time  of  her  sailing,  on  the  26th  of  July."  But  the  Court 
unequivocally  declared,  that  a  ship,  that  is  not  at  the  commencement  of  the 
insurance  in  fit  condition  to  perform  her  voyage,  is  not  a  fit  subject  of  insur- 
ance. Upon  this  judgment  a  writ  of  error  was  brought  in  the  Exchequer- 
chamber,  which  was  argued  before  Lord  Mansfield  and  Lord  Chief  Justice 
TVilmof,  who  wei-e  to  report  their  opinions  thereon  to  the  Lord  Chancellor  ; 
and  the  judgment  of  the  Court  below  was  ultimately  affirmed.  Whether  the 
judgment  was  so  affirmed  upon  the  specific  ground  taken  in  the  Court  of  Ex- 
chequer, or  upon  some  difficulty  arising  out  of  the  form  of  proceeding,  (being 
upon  a  demurrer  to  evidence)  (a)  does  not  appear:  but  whether  upon  the  one 
ground,  or  the  other,  there  is  no  doubt,  though  judgment  was  given  for  the 
plaintiffs,  that  the  principles  of  insurance  law  upon  the  subject  of  seaworthi- 
ness, and  the  doctrine  of  implied  warranties  or  conditions,  have  always  been 
r  *ini^  "1  *considered  as  unalterably  fixed  and  ascertained  since  that  period, 
^  J  although  that  doctrine  was  not  then  for  the  first  time  stated  in  our 

English  Courts,  and  was  certainly  long  before  known  in  the  law  of  insurance 
in  other  parts  of  Europe.  It  is  unfortunate  that  from  the  circumstance  of  there 
being  no  printed  report  of  this  case,  and  from  the  practice  of  the  two  Chief 
Justices  reporting  their  opinion  in  private,  the  grounds  of  that  opinion  cannot 
now  be  obtained:  but  it  cannot  be  disputed  from  the  opinions  of  Lord  Mans- 
field, and  other  Judges,  both  before  that  time  and  since,  that  the  principles  laid 
down  in  the  beginning  of  this  chapter  are  clearly  established  as  the  law  of 
England. 

The  principles  of  the  law  of  this  country  on  this  head  of  the  law  of  marine 
insurance,  so  declared  and  laid  down  in  the  above  case,  have  been  confirmed 
and  established  by  numerous  subsequent,  and  likewise  more  modern  decisions. 

In  a  case  of  Lee  v.  Beach,  [a]  tlie  plaintiff  had  purchased  a  ship,  and  after 
having  her  surveyed  by  proper  judges,  he  sent  her  into  the  dock,  and  there  had 
her  fully  repaired,  and  the  ship-builder  was  ready  to  swear,  that  he  effectually 
repaired  her,  as  he  thought,  having  done  all  that  was  required  to  make  her  a 
"good"  ship  ;  she  then  was  taken  into  government  service,  on  which  occasion 
she  was,  as  usual,  surveyed  by  the  persons  employed  for  the  purpose.  She 
sailed  out  of  the  Thames,  and  arrived  at  Portsmouth,  but  being  very  leaky, 
with  bad  weather,  the  Admiral  ordered  her  to  go  in  and  undergo  a  survey  there. 
This  was  done,  and  it  was  found,  on  opening  her,  that  some  timbers  near  her 
keel,  were  so  bad,  that  she  was  condemned  as  insufficient  to  proceed.     The 


{a)  This  judgment  probably  proceeded  upon  the  ground  that  the  assurer,  by  demurring 
to  the  evidence  given  on  behalf  of  the  plaintiffs,  had  admitted  upon  record  the  truth  of  every 
fact  and  every  conclusion,  which,  upon  the  evidence  staled,  might  have  been  found  by  the 
jury  in  favour  of  tiic  party  who  adduced  it;  but  yet  even  upon  the  facts  stated  it  would 
seem  dilhcult  to  reconcile  the  verdict  with  the  true  princi[)les  of  the  law  of  insurance.  See 
the  opinion  of  Mr.  J.  Butler,  in  Cockscdgc  v.  Fanshaw,  Doug.  134,  and  of  C.  J.  Eyre, 
in  the  case  of  Gibson  v.  Hunter,  2  II.  Bl.  205. 

(^i)  Sit.  at  Guild,  after  Mich.  1762.     Park  Ins.  4C8. 


UPON  THE  BODY,  TACKLE,  ETC.  OF  THE  SHIP.  '59 

plaintiff  having  insured  her,  applied  to  the  underwriters  for  the  loss  ;  the  defend- 
ant was  one  ;  and  the  plaintiff  insisted  that  he  had  done  evcryUiing  in  his 
power  to  send  her  out,  sufficient  and  good,  and  that  this  defect  was  a  latent 
cause  not  known  to  him,  or  discovered  when  she  was  surveyed,  or  in  the  dock 
repairing.  Lord  Mansfield  said,  "that  *it  appeared  that  the  ship  ^  sinp  -i 
had  died  a  natural  death,  and  had  received  her  death  hlow  before  L  J 

she  was  insured ;  and,  however  innocent  the  assured  was,  and  however  cau- 
tiously he  had  acted,  the  underwriter  was  equally  innocent ;  and  the  implied 
warranty  must  and  ought  to  have  its  effect,  and  the  plaintiff  must  make  the  best 
of  a  bad  bargain."     The  plaintiff  was  nonsuited. 

And  in  the  case  of  Munro  v.  Vandam,  (a)  it  was  held  that,  if  a  ship  sail 
upon  a  voyage,  and  in  a  day  or  two  become  leaky  and  founder,  or  is  obliged  to 
return  to  port  without  any  storm,  or  visible  or  adequate  cause  to  produce  such 
an  effect,  the  presumption  is,  that  she  was  not  "seaworthy"  when  she  sailed, 
and  that  the  jury  upon  the  plaintiff's  own  case  may  draw  such  a  conclusion. 
And  on  an  appeal  from  Scotland,  in  the  case  of  JVatson  v.  Clarke,  [b)  in  the 
House  of  Lords,  it  was  said  by  two  of  their  Lordships,  "That  where  the  ina- 
bility of  the  ship  to  perform  her  voyage,  becomes  evident  immediately  after 
leaving  the  port,  or  in  a  short  time  after  the  risk  commences,  without  any 
apparent  cause  of  injury,  the  presumption  is,  that  this  inability  has  arisen  from 
causes  existing  before  her  setting  sail  on  her  intended  voyage,  and  that  the  ship 
was  not  dien  seaworthy,  and  the  onus  probandi  in  such  a  case  is  thrown  upon 
the  assured,  to  shew  that  the  inability  arose  from  causes  subsequent  to  com- 
mencement of  the  voyage,  and  attaching  of  the  risk,  (c)  Lord  Eldon,  in  giving 
judgment  in  the  case  of  Douglas  and  others  v.  Scougall  and  others,  (rf)  says, 
"This  is  a  mere  question  of  fact  whether  the  ship,  when  she  sailed  from  Lei  th 
to  Pidon  was  seaworthy,  or  well  furnished,  tight,  staunch  and  strong  for  the 
voyage  insured.  I  have  often  had  occasion  to  observe  here  that  there  is  nothing 
in  matters  of  insurance  of  more  importance  than  the  implied  warranty  that  a 
ship  is  seaworthy  when  she  sails  upon  *the  voyage  insured.  It  is  ^  sin^  -i 
not  necessary  to  inquire  whether  the  owner  acted  honestly  or  fairly  ■-  J 

in  the  transaction:  for  it  is  clear  law  that,  however  just  or  honest  the  inten- 
tions and  conduct  of  the  owner  may  be,  if  he  is  mistaken  in  the  fact,  and  the 
vessel,  in  fact,  be  not  seaworthy,  the  underwriter  is  not  liable."  His  Lord- 
ship observed,  "that  the  injury  sustained  by  the  vessel  appeared  to  be  the  effect 
of  decay,  and  not  of  sea-damage,  that  the  survey  made  after  the  ship's  return 
differed  from  the  one  made  before  her  departure  ',  that  when  the  original  survey 
was  made,  the  outer  skin  or  coating  was  not  taken  off,  and  that  the  captain  was 
not  fully  examined  upon  tlie  trial ;  and  he  declared  that  it  was  perfecdy  mani- 
fest, and  proved  to  his  entire  satisfaction,  that  the  vessel  was  not  seaworthy  for 
the  voyage  when  she  sailed,  whatever  might  have  been  the  opinion  of  the 
owners  and  carpenters  who  repaired  her." 

And  in  another  case  of  Wilkie  v.  Qeddes,  [a)  in  the  House  of  Lords,  his 
Lordship  stated  that,  under  this  implied  ivarranty,  it  is  not  only  necessary  that 
the  hull  of  the  vessel  be  tight,  &c.,  but  that  the  ship  be  furnished  with  ground 
tackling  sufficient  to  encounter  the  ordinaiy  perils  of  the  sea  5  and,  therefore, 
when  the  best  bower  anchor,  and  the  cable  of  the  small  bower  anchor  were 
found  defective,  the  ship  was  not  seaworthy. 


(fl)  Sit.  before  Lord  Kenyon  at  Guild,  after  Mich.  1794. 
(Z»)   1  Dow.  336. 

(c)  See  also  Parker  v.  Potts,  2  Dow.  23.    Watt  v.  Morris,  1  Dow.  32.    Foster  v.  Steele, 
5  Scott,  25;  3  B.  N.  C.  892. 

(rf)  4  Dow.  269.  (a)  3  Dow.  57. 


60  UPON  THE  BODY,  TACKLE,  ETC.  OF  THE  SHIP. 

So  in  the  case  of  Oliver  v.  Coivley,  [h)  wliich  was  an  action  brought  by  an 
innocent  shipper  of  goods  (and  no  part-owner  of  the  ship)  against  the  under- 
writer, and  the  poUcy  was  on  "goods  in  the  ^my  and  Laetitia,  at  and  from 
Montserrat  to  London ;"  and  it  appeared  that  the  ship  sailed  26th  July,  and 
the  next  day,  without  bad  weather,  she  became  very  leaky,  and  obliged  to  run 
for  St.  Thomases,  one  of  the  Virgin  Islands,  where  she  was  unloaded,  and 
the  goods,  being  much  damaged,  were  sold  ;  and  it  could  not  but  be  allowed  on 
all  sides  that  the  ship  was  not  seaworthy  to  take  the  voyage  insured ;  and  it 
r  *ins  1  ^^'^^  admitted  by  the  defendant,  that  the  *shipper  of  the  goods  was 
L  J  a  stranger  to  the  ship  when  the  goods  were  shipped.     The  plain- 

tiff was  nonsuited  ;  Lord  Mansfield  saying,  "that  the  implied  warranty  could 
not  be  dispensed  with  in  any  case  ;  that  it  was  a  point  of  law,  and  if  the  plain- 
tiff's counsel  thought  there  was  any  ground  to  go  upon,  he  would  save  the 
point ;  but  the  counsel  declined  this,  being  satisfied  that  the  case  was  clear 
against  them."     The  plaintiff  was  nonsuited. 

In  a  later  case,  the  law  respecting  the  implied  warranty  of  "  seaworthiness*^ 
was  clearly  laid  down,  and  the  reason  of  it  shown  by  Mr.  J.  Lawrence.  It 
was  the  case  of  Christie  v.  Secretan.  (a)  The  learned  Judge  said  : — "  I  also 
doubt  whether  there  is  any  analogy  between  a  case  like  the  present  and  cases 
where  there  is  implied  warranty  of  seaworthiness.  The  latter  is  implied  from 
the  nature  of  a  contract  of  insurance.  The  consideration  of  an  insurance  is 
paid,  in  order  that  the  owner  of  a  ship,  which  is  capable  of  performing  her 
voyage,  may  be  indemnified  against  certain  contingencies  ;  and  it  supposes  the 
possibility  of  the  underwriters  gaining  the  premium.  But  if  the  ship  be  inca- 
pable of  performing  the  voyage,  there  is  no  possibility  of  the  underwriters 
gaining  the  premium  ;  and,  if  the  consideration  fails,  the  obligation  fails.  In 
the  case  of  the  Mills  Frigate,  it  was  said  that  the  ship's  being  capable  of  per- 
forming the  voyage  was  the  substratum  of  the  contract  of  insurance.  So  if  a 
ship  sail,  without  a  sufficient  crew,  she  is  incapable  of  performing  the  voyage." 

But  it  is,  however,  to  be  observed,  that  when  it  is  said  that  a  ship  must  be 
perfectly  seaworthy,  and  equipped  for  the  voyage,  at  the  time  of  the  commence- 
ment of  the  risk,  this  is  nevertheless  to  be  taken  with  a  reference  to  her  situa- 
tion and  condition  in  different  periods  of  the  voyage  to  which  the  risk  attaches. 
For  instance,  if  the  policy  attaches  whilst  a  vessel  is  in  harbour,  taking  in  her 
r  *inQ  "I  ^"^^o^'  ^^  never  can  be  required  that  she  should  be  in  that  complete 
L  J  *state  of  repair  and  of  equipment,  with  regard  to  her  crew  and 

furniture,  as  would  be  necessary  when  she  leaves  the  harbour  and  regularly  sets 
sail  on  her  voyage.  Again,  if  the  character  of  the  voyage  be  such  that  at  dif- 
ferent points  of  it  a  difference  in  the  number  of  her  crew  or  state  of  equipment 
would,  in  the  usual  course  of  navigation,  take  place,  all  that  can  be  required  of 
the  assured  is,  that  at  those  different  points  and  divisions  in  the  voyage  the  ship 
shall  be  respectively  in  such  a  state  and  condition,  with  regard  to  her  repairs, 
furniture,  and  crew,  as  is  commensurate  with  her  then  risk,  or,  which  amounts 
to  the  same  thing,  as  is  in  conformity  with  the  acknowledged  practice  and  mode 
of  navigation,  (a)  If,  for  instance,  it  be  usual  for  the  master  of  a  vessel  to  take 
in  a  pilot  at  a  particular  place,  and  that  the  pilot  should  quit  the  vessel  at 
another,  if  the  loss  occurs  either  before  the  ship's  arrival  at  the  spot  where  the 
pilot  should  have  been  taken  in,  or  after  the  period  when  it  is  customary  that 
he  shoidd  resign  the  ship  again  into  the  command  of  the  master,  the  under- 
writer cannot  seek  to  discharge  himself  on  the  ground  of  the  absence  of  the 


(ti)  Sit   at  Guild,  after  Trin.  Term,  176.5.     Park  Ins.  470. 

(«)  8T.  R.  192. 

(a)  See  Graham  v.  Barras,  5  B.  &  Ad.  1011. 


UPON   THE    BODY,  TACKLE,   ETC.   OF    THE    SHIP.  61 

pilot,  because  at  one  particular  point  in  the  voyage  his  presence  constituted  an 
essential  ingredient  in  the  seaworthiness  of  the  ship. 

These  general  principles  relating  to  this  part  of  the  subject  will  be  found  to 
be  fully  supported  by  tlie  following  decisions : — 

Tims  in  the  case  of  Forbes  and  another  v.  TVihon^  {b)  Avhere  a  policy  of 
insurance  was  effected  on  the  ship  Henry,  "at  and  from  Liverpool  to  tlie  coast 
of  Africa,''''  it  appeared  that  at  the  time  the  policy  was  made  the  ship  was  not 
in  a  condition  to  go  to  sea,  but  was,  in  fact,  at  the  time,  undergoing  very  mate- 
rial repairs;  and  it  was  contended  by  the  underwriters  that,  as  the  risk  was 
*'at"  as  well  as  "from,"  if  the  ship  was  not  seaworthy,  from  whatever  cause, 
when  the  policy  was  subscribed,  it  was  void ;  and  that  any  repairs  done  after- 
wards, so  as  to  make  her  completely  seaworthy  at  the  *time  of  p  siin  -i 
sailing,   would  not  cure  that  defect.     But  Lord  Kenyon  was  of  L  J 

opinion  that,  under  the  words  "  at  and  from,"  it  is  sufficient  if  the  ship,  at  the 
time  of  sailing,  be  "seaworthy;"  for,  from  the  nature  of  the  thing,  the  ship 
while  at  the  place  probably  must  be  undergoing  some  repair.  The  plaintiffs 
had  a  verdict,  and  no  motion  was  made  to  set  it  aside,  (a) 

And  in  a  later  case  of  Hibbert  and  others  v.  Martin,  (b)  ■where  the  case  of 
Forbes  v.  Wilson  was  quoted,  Lord  Ellenborough  saicl,  "I  agree  with  the 
doctrine  of  that  case :  it  is  quite  sufficient  if  the  state  of  the  ship  be  commen- 
surate to  her  then  risk.  There  may  be  a  seaworthiness  sufficient  while  in  har- 
bour, and  there  is  a  state  of  seaworthiness  for  the  voyage,  (c) 

And  it  was  held  in  the  Common  Pleas,  in  the  case  of  Annan  v.  Wood- 
man, ((/)  tliat  a  ship  much  out  of  repair  may  be  sufficiently  seaworthy  for  a 
harbour,  and  is  protected  under  the  word  "«/;"  and  as  full  complement  of 
sailors  is  not  necessary  for  her  in  harbour,  she  does  not  cease  to  be  seaworthy 
for  want  of  a  crew,  till  she  sails  out  of  harbour  without  a  sufficient  crew.  And 
it  was  held  that  if  a  ship,  sufficiently  seaworthy  in  port,  sail  without  being 
rendered  seaworthy  for  the  voyage,  yet  by  the  word  "at"  in  the  policy,  the 
risk  attached,  and  that,  therefore  there  could  be  no  return  of  premium,  (c) 

The  vessel  when  she  sails  from  port,  must  be  provided  with  a  suificient 
crew,  [f)  and  with  a  captain  of  competent  skill  for  the  voyage.  And  where 
there  was  an  express  warranty,  in  a  case  of  Tail  v.  Levy,  (g)  that  the  ship 
should  not  go  higher  up  the  Mediterranean  than  Tarragona,  but  the  captain 
was  *so  ignorant  of  the  coast,  as  to  mistake  Barcelona  (which  lies  p  ^,  . .  -, 
further  up  the  Mediterranean)  for  Tarragona,  and  on  entering  the  '-  -■ 

former  port  was  captured ;  it  was  held  that  the  underwriters  were  discharged, 
on  the  ground  of  the  want  of  competent  skill  in  the  captain. 

But  where  there  is  an  admission  by  assurers,  that  a  vessel  is  to  be  taken  as 
seaworthy,  they  are  bound  by  that  admission. 

In  a  case  of  Proctor  and  others  v.  Thorburne  and  others,  before  Lord  Den- 
man,  at  the  Liverpool  Summer  Assizes,  1842,  (a)  where  there  was  a  clause  in 
the  policy  "that  the  vessel  should  be  taken  to  be  seaworthy."  His  Lordship 
held  that  the  plaintiffs  were  entitled  to  the  verdict,  unless  the  jury  were  of 

{b)  Sit.  after  East.  Term,  1800.      Tark  Ins.  472. 

(a)   See  Smith  v.  SurriJge,  4  Rep.  25,  where  Lord  Kenyon  held  the  same  opinion. 

{b)  Guildhall,  M.  T.  1808.     Park  Ins.  473. 

(c)  The  commencement  of  the  voyage  means  "sailing  from  port."  Graham  v.  Barras, 
5  B.  &  Ad.  ton. 

(//)   3  Taunt.  399.  (e)  See  Hucks  v.  Thornton,  1  Holt,  30. 

(/)  Clifford  V.  Hunter,  M.  &c  M.  103.  Forshaw  v.  Chabert,  3  B.  &  B.  1.58.  Per  J. 
Bayley,  in  Busk  &  K.  Ex.  Co.  2  B.  &  A.  83.  Walker  v.  Maitland,  5  B.  &  A.  175. 
Riiisdale  v.  Newnham,  3  M.  &  S.  456. 

{g)   14  East,  481.  (o)  MS.  penes  me. 


G2  UPON  THE  BODY,  TACKLE,  ETC.  OF  THE  SHIP 

opinion,  that  the  sliip  was  at  the  time  of  saiUng  unseaworthy  within  the  know- 
ledge of  tine  assured.  This  want  of  knowledge,  we  have  seen,  in  ordinary 
cases  would  be  no  answer,  if  the  ship  was  in  fact  not  seaworthy. 

And,  on  the  other  hand,  in  the  case  of  Steivart  v.  Tflhon,  {b)  where  the 
rules  of  an  insurance  association  provided,  that  "the  managing  underwi-iters 
should  survey  each  ship  insured,  in  hull  and  materials,  every  year,  without 
distinction,  and  order  such  stores  and  repairs  as  they  might  deem  necessary, 
which  stores  must  be  got  and  repairs  done,  on  due  notice  being  given,  other- 
wise the  ship  should  not  be  insured."  The  policies  were  all  to  be  time  poli- 
cies for  a  year :  held  that  the  effect  of  not  complying  with  an  order  of  the 
manacfino-  underwriters  was,  that  the  ship  must  be  considered  unseaworthy,  and 
the  policy  of  assurance  Avhich  had  before  been  made  on  her,  void. 

In  the  recent  case,  also,  of  Parfitt  v.  Thompson  and  others^  (c)  which  was 
an  action  on  a  policy  of  insurance  for  a  total  loss,  the  declaration  stated  that 
the  defendants  agreed  that  tlie  ship  should  be,  and  was  thereby  allowed  to  be, 
seawortliy  in  her  hull,  tackle,  and  materials  for  the  voyage ;  the  assured  declar- 
r  «iio  n  i"?'  that  to  the  best  of  their  belief,  and  according  to  *their  know- 
L  J  ledge  and  information,  the  ship,  at  the  time  of  the  insurance,  was 

in  all  respects  seaworthy  for  the  voyage.  It  then  alleged  the  making  of  the 
policy,  and  that  during  die  voyage,  by  stormy  winds  and  tempestuous  weather, 
and  by  the  force  and  violence  of  the  winds  and  waves,  the  ship  became  leaky, 
strained,  riven,  and  damaged,  insomuch  that,  by  means  thereof,  it  became  neces- 
sary for  her  preservation,  for  her  to  sail  to  the  nearest  port  of  safety  :  that  she 
accordingly  sailed  to  the  nearest  port  of  safety,  to  wit,  the  harbour  of  Gambia; 
that  on  her  arrival  at  Gambia  she  was  unfit  to  prosecute  her  voyage  without 
being  repaired  and  refitted;  that  she  Avas  found  to  be  unseaworthy,  and  unfit 
to  prosecute  her  voyage,  unless  great  repairs  were  done  upon  her ;  that  such 
repairs  could  not  be  done  at  Gambia;  that  it  was  not  possible  to  obtain  any 
repairs  sufficient  to  enable  her  to  proceed  on  her  voyage,  or  to  proceed  to  any 
other  port  to  be  repaired ;  that  it  became  expedient  and  necessary  to  abandon 
the  voyage  and  to  sell  the  ship ;  and  that  the  ship  was  sold,  by  means  of  which 
premises  the  voyage  was  not  performed,  and  the  vessel  wholly  lost  to  the 
plaintiff:  held  that,  "whether  the  loss  of  the  vessel  was  occasioned  by  unsea- 
Avorthiness,  or  by  the  perils  of  the  sea,  the  defendants  were  bound  by  their 
admission,  and  could  not  dispute  the  seaworthiness."  Held,  also,  on  motion, 
"that  it  sufficiently  appeared  by  the  allegations  in  the  declaration,  that  the  loss 
of  the  vessel  was  occasioned  by  the  perils  of  the  sea."  These  cases  show  that 
it  is  not  unusual  with  associations  of  insurance,  either  to  bind  the  underwriters 
to  certain  admissions,  or  to  make  the  merchants  adhere  to  certain  rules :  they 
are  quite  at  liberty  to  do  this,  but  they  must  bear  the  consequences  of  such 
stipulations.  Private  underwriters  do  not  often,  if  at  all,  depart  from  the  com- 
mon form  of  the  policy,  except  in  the  liberties  and  privileges  which  may  suit 
the  assured:  as  liberty  to  touch,  to  stay  and  trade,  &c.,  in  different  forms;  it 
is  frequent,  also,  for  the  underwriters  to  insure  the  goods  to  the  ship  from  the 
shore,  which  is  not  the  usual  form  in  the  ordinary  policy. 

"1  *And  in  a  case  of  Samuel  v.  Royal  Exchange  Assurance  Com- 
L  '1^^  J  pany,  (a)  tried  l)efore  Lojd  Tenferden  at  the  London  Sittings  after 
Trin.  Term,  1827,  where  the  loss  happened  to  the  ship  in  entering  the  dock 
at  Dcplford^  his  Lordship  told  the  jury,  that  one  question  of  fact  was,  Avhether 
persons  of  competent  skill  were  employed  to  carry  the  vessel  into  the  dock.^ 
If  persons  of  competent  skill  were  not  on  board,  the  defendants  were  entitled  to 
the  verdict. 

(b)  12  M.  &  W.  11.  (c)  13  M.  &  W.  392. 

(a)  8  13.  &C.  119. 


UPON  THE  BODY,  TACKLE,  ETC.  OF  THE  SHIP.  63 

The  captain,  also,  is,  by  the  position  of  consequence  in  which  he  is  placed 
by  the  owners,  ancl  by  the  coniulence  reposed  in  him  by  them,  frequently 
called  upon  to  exercise  his  judgment  in  cases  of  loss  and  insurmountable  diffi- 
culties, and  to  act,  according  to  his  discretion,  in  tlie  best  manner  for  the  benefit 
of  all  concerned. 

In  the  case  of  Milks  v.  Fletcher,  (b)  which  was  an  action  on  a  policy  of 
insurance  on  "a  ship  and  her  freicrjit,"  the  plaintiff  went  for  a  total  loss.  The 
defendant  insisted  that  he  was  only  entitled  to  recover  for  an  average  loss.  The 
jury  found  a  verdict  for  a  total  loss.  The  facts  were  that  the  ship  and  goods 
were  captured  on  the  23d  of  J/«y,  by  two  ^^merican  privateers,  who  took  the 
captain,  and  all  the  crew,  and  part  of  the  cargo  (sugar)  out  of  her;  the  rigging 
was  also  taken  away.  She  was  afterwards  retaken,  and  carried  into  Neiv 
York,  where  the  captain  arrived  on  the  23rd  of  June,  and  taking  possession  of 
her,  found  that  part  of  what  was  left  of  the  cargo  was  washed  overboard ;  that 
fifty-seven  hogsheads  of  what  remained  were  damaged ;  and  that  the  ship  was 
leaky,  and  could  not  be  repaired  without  unloading  her  entirely.  Under  these 
and  other  disadvantageous  circumstances,  he  consulted  with  his  friends  at  A^ew 
Fork,  and  resolved,  upon  their  opinion  and  his  own.  to  sell  the  ship  and  cargo, 
as  the  most  prudent  step  for  tlie  interests  of  his  employers.  The  cargo  was 
sold,  and  paid  for.  The  ship  was  also  contracted  for,  but  the  person  who  had 
agreed  to  buy  her  ran  away,  and  the  captain  left  her,  and  returned  to  England 
*in  the  February  following,  and  gave  the  plaintifl'  notice  of  what  r  *ii4  -i 
had  been  done,  which  was  the  first  notice  he  received  of  it;  and  L  J 

the  plaintiff  immediately  claimed  for  a  total  loss,  and  offered  to  abandon.  Lord 
Mansfield,  at  the  trial,  told  the  jury,  that  if  they  were  satisfied  that  the  captain 
had  done  what  was  best  for  the  benefit  of  all  concerned,  they  must  find  as  for 
a  total  loss,  which  they  accordingly  did.  Upon  a  motion  for  a  new  trial,  the 
unanimous  opinion  of  the  Court  was  delivered  by  Lord  Mansfield,  who  said, 
in  the  course  of  the  judgment,  "when  the  assured  first  had  notice,  and  offered 
to  abandon,  (which  was  when  the  captain  came  to  England)  and  when  the  ship 
was  brought  to  New  York,  it  was  still  a  total  loss.  The  only  answer  the 
defendant  makes,  or  can  make  to  this  is,  that  the  loss  was  total  indeed,  but  that 
the  captain  made  it  so  by  his  improper  conduct ;  for  that  on  taking  possession 
of  the  ship  the  loss  became  partial,  and  that  he  ought  to  have  pursued  the  voy- 
age. But  is  this  defence  true.^  The  captain,  when  he  came  to  New  York, 
had  no  express  order,  but  he  had  an  implied  authority,  from  both  sides,  to  do 
what  was  fit  and  right  to  be  done,  as  neither  of  them  had  agents  in  the  place ; 
and  whatever  it  was  right  for  him  to  have  done,  if  it  had  been  his  own  ship 
and  cargo,  the  underwriters  must  answer  for  the  consequences  of  it,  because 
this  was  within  his  contract  of  indemnity." 

In  the  case  of  Shipton  v.  Thornton,  [a]  Lord  Denman  says,  'nhat  it  must 
never  be  forgotten,  that  the  master  acts  in  a  double  capacity — as  agent  to  the 
owners  as  to  the  ship  and  freight,  and  agent  to  the  merchant  as  to  the  goods : 
these  interests  may  sometimes  conflict  with  each  other,  and  from  that  circum- 
stance may  have  arisen  the  difiiculty  of  defining  the  master's  duty,  under  all 
circumstances,  in  any  but  very  general  terms.  The  case  now  put  supposes 
an  inability  to  complete  the  contract  in  its  terms  in  another  bottom,  and  there  - 
fore  the  owner's  right  to  tranship  will  be  at  an  end ;  but  still,  all  circumstances 
considered,  it  may  be  greatly  for  tlie  *benefit  of  the  freighter  that  p  'i\\^  ~| 
the  goods  should   be  forwarded   to  their  destination,  even  at  an  ^  -^ 

increased  rate  of  freight ;  and,   if  so,  it  will  be  the  duty  of  the  master,  as  his 


(6)  Dough.  231.  (a)  9  A.  &  E.  314. 

Vol.  VII. —F 


6i  UPON   THE    BODY,  TACKLE,   ETC.   OF    THE    SHIP 

agent,  to  do  so.     In  such  a  case,  the  freighter  will  be  bound  by  the  act  of  his 
agent,  and  liable  for  the  increased  freight." 

It  is  likcAvise  required  by  law  (a)  that  the  master  should  take  on  board  a 
pilot  at  those  points  in  the  voyage  when  the  law  bids  him.  Pilots  are  estab- 
lished at  different  places  in  England,  by  tlie  autliority  of  various  charters  and 
acts  of  Parliament;  and,  in  general,  the  master  of  a  ship  engaged  in  a  foreign 
trade  must  place  tlie  ship  under  the  charge  of  such  a  pdot,  both  in  the  outward 
and  homeward  voyage,  within  the  limits  of  every  such  establishment,  [b) 

There  is  a  case  of  Law  v,  HoUingsivorfh,  (c)  of  which  only  a  brief  notice 
will  be  requisite,  inasmuch  as  the  decision  in  that  case  is  considered  to  be 
overruled  by  more  modern  authorities ;  the  reader  may,  however,  refer  to  the 
full  report  of  the  case,  and  judge  for  himself.  The  facts  were  simply  these : 
A  captain  of  a  vessel  entering  the  Thames  took  on  board  a  pilot  at  Orfordyiess, 
who  again  quitted  her  at  Halftvay  Reach;  after  which,  and  before  she  came  to 
her  moorings  higher  up  the  river,  the  accident  happened  which  occasioned  the 
loss.  The  captain,  also,  had  left  the  vessel  before  the  time  of  the  actual  loss. 
It  further  appeared  that  the  pilot  was  not  properly  qualified  at  the  time,  accord- 
ing to  the  provisions  of  5  Geo.  2,  c.  20,  for  the  regulations  of  pilots  on  the 
River  Thames;  but  it  did  not  appear  that  this  fact  was  known  to  the  captain  j 
and  the  pilot  had  since  received  his  regular  qualification. 

In  the  case  of  Dixon  v.  Sadler,  (d)  which  we  shall  have  to  refer  to  at  length 
r  *llfi  1  ^"  ^^^  course  of  this  treatise,  Parke,  B.,  *who  delivered  the  judg- 
L  J  ment  of  that  case,  after  deliberation  by  the  Court  of  Exchequer, 

sa^'s  (on  the  subject  of  the  case  of  Law  v.  HoUingsworth  :) — "The  only  case 
which  appears  to  be  at  variance  with  the  principle  now  laid  down  is  the  case 
of  Laiv  V.  Hollingsivorfh,  in  which  the  fact  of  the  pilot  who  had  been  taken 
on  board  for  the  navigation  of  the  River  Thames  having  quitted  it  before  he 
ought,  (under  what  circumstances  is  not  distincdy  stated)  appears  to  have  been 
held  to  have  vitiated  the  policy.  In  this  respect  we  cannot  help  thinking  that 
the  case  must  be  considered  as  having  been  overruled  by  the  modern  authorities 
above  alluded  to.  The  great  principle  established  Iiy  the  more  recent  decisions 
is,  that  if  the  vessel's  crew  and  equipments  be  originally  suflicient  the  assured 
has  done  all  he  contracted  to  do,  and  is  not  responsible  for  the  subsequent  defi- 
ciency occasioned  by  any  neglect  or  misconduct  of  the  master  or  crew,  or  of 
the  pilot  as  a  temporary  master.  And  this  principle  prevents  many  nice  and 
difficult  inquiries,  and  causes  a  more  complete  indemnity  to  the  assured,  which 
is  the  object  of  the  contract  of  insurance." 

When  tliis  case  of  JJixon  v.  Sadler  was  brought  into  a  Court  of  Error,  (a) 
Lord  Chief  Justice  Tindcd,  who  delivered  the  judgment,  says,  at  the  con- 
clusion of  it,  "But,  without  entering  into  a  futher  discussion  of  the  principle, 
we  think,  upon  the  later  authorities,  the  rule  is  established,  that  there  is  no 
implied  ivarranty,  on  the  part  of  the  assured,  for  the  continuance  of  the  sea- 
worthiness of  the  vessel,  or  for  the  performance  of  their  duty  by  the  master 
and  cretv,  during  the  u'holc  course  of  the  voyage.  'J'he  case  of  Laic  v.  Hol- 
lingsworth  must  be  allowed  to  bear  against  the  principle  so  laid  duwn  by  those 
later  authorities.  The  ground  of  decision  in  that  case  appears  to  have  been, 
that  there  was  no  pilot  on  board  during  the  time  the  ship  was  sailing  up  the 


(ft)  See  the  case  of  "The  Protector,"  1  Dr.  W.  Rob.  Ad.  Rep.  N.  S.  A^\  and  see  the 
provisions  of  the  Genera!  Pilot  Act,  6  Geo.  4,  c.  12.'3 ;  al.so  the  ca.ses  of  M'Into.sh  v.  Shide, 
6  B.  &  C.  6.57;  Bcnnct  v.  Moita,  7  'J'aunt.  258;  Lucey  v.  Ingrain,  6  M.  «Sc  W.  302; 
Ritchie  v.  Bousfield,  7  Taunt.  30'J. 

(/y)  !^ee  Abbott  on  Shipping,  6th  edit.  p.    173. 

(c)  7  T.  R.  160.  (r/)  5  M.  &  W.  p.  415. 

(a)  8  M.  «fc  W.  805. 


TIPON    THE    BODY,   TACKLE,   ETC.   OF    THE    SHIP.  65 

Thames,  wliich  was  required  by  5  Geo.  2,  and  that  there  was  an  implied  duty 
on  the  part  of  the  assured  that  there  sliouhl  be  such  *a  person,  p  *-\\i  -^ 
This,  at  least,  appears  to  be  the  ground  of  Lord  Kenyoii's  judi^-  L  -I 

ment,  although,  rertaiiily,  the  other  two  Judges  seemed  to  have  considered  that 
it  was  a  loss  arising  from  an  act  of  gross  negligence.  The  decision  may  be 
maintainable  on  the  ground  of  an  implied  warranty  to  observe  the  positive 
requisitions  of  an  act  of  Parliament;  but  if  it  is  to  be  taken  as  an  authority, 
that  the  implied  warranty  of  the  assured  extends  to  acts  of  negligence  on  the 
part  of  the  master  and  crew  throughout  the  voyage,  we  think  it  cannot  be  sup- 
ported against  the  weight  of  the  later  authorities. 

''This  case  of  Laiv  v.  Hollins^sworth,  appears  not  to  apply  to  cases  of  the 
neglect  of  the  master  or  pilot,  if  one  has  come  on  board,  and  the  provisions  of 
the  General  Pilot  Act  on  this  subject,  seem  to  have  done  little  more  than  to 
have  confirmed  and  strengthened  this  principle  of  law.  The  pilot,  when  in 
charge  of  the  vessel,  stands  in  tlie  place  of  the  master;  and  the  underwriters 
are  no  more  discharged  by  his  neglect  than  they  are  by  the  neglect  of  the  mas- 
ter. In  the  case  of  dirruthers  v.  Sydebothum,  (a)  it  was  held,  that  where 
the  ship  was  stranded  by  the  neglect  and  fault  of  the  pilot,  the  underwriters 
were  not  discharged;  and  the  same  principle  one  would  naturally  suppose 
Mould  apply  to  the  case  where  the  pilot,  having  been  once  on  board,  leaves 
l!ie  ship  sooner  than  he  ought  to  do,  either  wilfully  or  by  neglect.  Now,  bear- 
ing the  provisions  of  the  General  Pilot  Act  in  mind,  let  us  see  what  would  be 
the  effect  on  the  contract  of  insurance,  if  in  any  case  where  a  pilot  is  required 
by  law,  or  by  the  practice  of  navigation  in  any  particular  place,  to  take  charge 
of  the  vessel,  and  no  pilot  can  be  obtained  or  ever  comes  on  board.  There 
can  be  no  doubt  that  it  is  the  duty  of  the  master  to  use  all  possible  endeavour  to 
comply  with  this  rule  ;  and  when  he  is  leaving  a  port  and  has  the  means  in  his 
power,  it  would  seem  to  be  imperative  on  him  not  to  sail  without  one.  (6)  But 
what  is  he  to  do  if  in  approaching  a  port,  he  finds  it  impossible,  either  on 
account  of  the  violence  of  the  sea,  *or  any  other  insurmountable  p  ^,jj.  -, 
cause  to  procure  one.^     Why  in  such  a  case  the  master  must  act  to  •-  -^ 

the  best  of  his  judgment- — and  supposing  him  to  be  a  captain  of  competent 
skill,  the  case  will  fall  within  the  plea  of  necessity,  which  in  extremities  in 
matters  relating  to  insurances  have  always  been  allowed.  And  by  the  express 
provisions  of  the  act  above  referred  to,  it  is  declared,  that  the  underwriters 
shall  not  be  discharged  by  reason  of  no  pilot  being  on  board,  'unless  it  shall 
be  proved  that  the  want  of  a  pilot,  or  of  a  duly  qualified  pilot,  shall  have  arisen 
from  any  refusal,  or  to  take  a  pilot,  or  a  duly  qualified  pilot  on  board,  or  for 
the  wilfid  neglect  of  the  master  of  such  a  vessel,  in  not  heaving  to,  or  using 
all  practicable  means  consistenUy  with  the  safety  of  such  ship  or  vessel,  for 
the  purpose  of  taking  on  board  any  pilot,  who  shall  be  ready  and  offer  to  take 
charge  of  such  ship  or  vessel.' "  (o)  And  this  enactment  is  in  direct  conformity 
with  the  principles  of  law  laid  down  by  Lord  Tenterden,  in  the  case  of  Fhil- 
lips  V.  Headhtm,  {h)  which  was  an  action  upon  a  policy  of  assurance,  "at 
and  from  Liverpool  to  the  ship's  port  or  ports  of  discharge  in  Sierra  Leone, 
and  during  her  stay  there,  and  from  thence  to  her  port  or  ports  of  discharge  in 
the  United  Kingdom.^'' 

At  the  trial  before  Bayley,  .T.,  at  the  Summer  Assizes  for  the  county  of 
lAincaster,  1829,  it  appeared  that  the  ship  sailed  on  the  voyage  insured,  and 
arrived  at  three  o'clock  in  the  evening  of  the  30th  January,  oif  the  river  Sierra 


(a)  4  M.  &  S.  77. 

(6)  Per  Lord  Tenterden,  in  Phillips  v.  Headlam,  2  B.  &  Ad.  383. 

(a)  6  Geo.  4,  c.  12.5,  s.  56.  (6)  2  B.  &  Ad.  383. 


66  UPON  THE  BODY,  TACKLE,  ETC.  OF  THE  SHIP. 

Leone^  where  there  is  a  regular  establishment  of  pilots;  that  the  captain  then 
hoisted  a  signal  for  a  pilot,  and  at  ten  o'clock  no  pilot  having  come  on  board, 
the  captain  attempted  to  enter  the  river,  and  in  doing  so,  the  vessel  struck  the 
ground  and  was  lost.     It  was  proved  that  it  was  usual  for  vessels  either  coming 
out  or  going  into  the  river,  to  take  a  pilot,  and  the  defendant's  evidence  went 
to  show,  that  it  was  not  necessary  or  proper  that  the  captain  should  enter  the 
river  without  one.     Bayley^  J.,  told  the  jury  to  find  for  the  plaintifl',  if  they 
r    ^-iTQ     -|  thought  that  the  captain  in  entering  the  harbour  without  a  *pilot, 
L    ""-^l^     J  did  what  a  prudent  man  would  do  under  the  circumstances  :  other- 
wise for  the  defendant.     The  jury  having  found  for  the  plaintiff,  a  rule  nisi 
was  obtained,  on  the  ground  that  the  verdict  was  against  evidence.     Lord  Tm- 
terden,   C.  J.,  "The  rule  for  a  new  trial  must  be  discharged.     If  the  loss 
happened  even  in  consequence  of  the  mistake  of  the  master,  (provided  he  were 
a  person  of  competent  skill  at  the  time  when  the  policy  was  made)  the  under- 
writers are  chargeable.      The  case  was,  therefore,  left  to  the  jury  most  favour- 
ably for  the  defendant;  and,  at  all  events,  he  will  not  be  entitled  to  a  new  trial, 
unless  it  be  on  the  ground  that  the  master  was  bound  by  law  not  to  enter  the 
harbour  without  a  pilot.     It  may  be  conceived  that  a  vessel  coming  out  of  a 
harbour  must  have  a  pilot,  because  the  master  always  has  it  in  his  power  to 
procure  one ;  but  it  seems  to  me  that  if  the  master  of  a  vessel,  arriving  ofT  a 
port,  use  due  diligence  to  obtain  a  pilot  he  does  all  that  is  required  by  law. 
Here  the  vessel  arrived  off  Sierra  Leone  about  three  in  the  afternoon  :  the 
captain  hoisted  signals  for  a  pilot,  and  at  ten  no  pilot  had  come  off.     It  seems 
to  me  that  upon  the  evidence,  the  master  did  use  due  diligence  to  obtain  a  pilot, 
and  having  done  so,  it  was  competent  to  him  to  exercise  his  discretion,  whether 
it  was  l)etter  to  run  the  risk  of  entering  the  harbour  without  one,  or  to  wait  for 
the  following  day  for  a  pilot.      Here,  acting  to  the  best  of  his  judgment,  he 
attempted  to  enter  without  one,  and  in  doing  so  the  vessel  Avas  lost :  and  I 
think   the  underwriters  are  liable  for  a  loss  happening  under  these  circum- 
stances."     Parke,  J. — "The  rule  of  law  is,  that  the  assured  is  bound  to  have 
the  ship  seaworthy  at  the  commencement  of  the  risk.      He  is  bound,  therefore, 
to  have  a  sufficient  crew,  and  a  master  of  competent  skill  and  ability,  .to  navi- 
gate her,  at  the  commencement  of  the  voyage :  and  if  she  sail  from  a  port 
where  there  is  an  establishment  of  pilots,   and  the  nature  of  the  navigation 
requires  one,  the  master  must  take  one.     So,  if  in  the  course  of  her  voyage, 
the  master  arrives  at  a  port  or  place  where  a  pilot  is  necessary,  he  ought  not 
to  dismiss  him  before  the  necessity  has  ceased.     But  if  a  vessel  sails  to  a  port 
-190     1  ""'l^*^'"'^  ^'^^  establishment  is  such,  that  it  is  not  always  possible  to 
L      1'^^     J  procure  the  assistance  of  a  pilot  before  the  vessel  enters  into  the 
difficult  part  of  the  navigation — then  as  the  law  compels  no  one  to  perform 
impossibilities,  all  it  can  require  in  such  a  case  is,  tliat  the  master  use  all  rea- 
sonable efforts  to  obtain  one.     In  another  action  on  this  policy,  tried  before 
me  at  Lancaster,  at  the  Spring  Assizes,  1830,  1  left  two  questions  to  the  jury; 
first,  whether  by  the  law  of  usage  of  Sierre  Leone,  a  pilot  was  required?  and 
secondly,  whetlier  the  captain  made  all  reasonable  efibrts  to  obtain  one,  and 
not  beino-  able  to   do  so,    conducted  himself  as  a  man  of  reasonable  care, 
prudence,  and  skill,  ought  to  have  done.?     The  jury  found  a  verdict  for  the 
plaintiff,  whicli  the  Court  on  a  motion  for  a  new  trial,  refused  to  disturb." 
lAltledale,  J.,  concurred  with  the  rest  of  the  Court,  and  the  rule  was,  there- 
fore, discharged. 

In  the  case  of  Farmer  v.  Legg,  {a)  the  cpiestion  was,   whether  the  ship 
insured  had  been  duly  navigated  in  the  manner  prescribed  by  the  stat.  31  Geo. 


(a)  7T.  R.  186. 


UPON  THE  BODY,  TACKLE,  ETC.  OF  THE  SHIP.  67 

3,  c.  54,  s.  7.  It  was  an  action  on  a  policy  of  ins\irance  on  The  Cadiz  Dis- 
patch, on  a  voyaore  from  London  to  the  coast  of  Africa,  and  if  the  ship  had 
not  been  navigated  according  to  the  statute  in  question,  it  was  agreed  that  the 
insurance  was  void.  The  statute  required  tliat  no  person  shoukl  take  the  com- 
mand of  an  African  ship,  until  he  should  have  made  oath,  and  produced  to 
the  officer  of  the  customs,  a  certificate  attested  by  the  owner  or  owners,  that 
he  had  already  served  in  that  capacity  during  one  voyage,  or  as  chief  mate  and 
surgeon  during  two  voyages,  under  certain  penalties.  The  Court  were  of 
opinion,  that  the  certificate  produced  in  the  case  signed  by  the  then  owner,  did 
not  comply  with  the  requisition  of  the  statute,  that  therefore  the  ship  was  not 
duly  navigated,  and  confirmed  the  judgment  of  nonsuit  against  the  plaintiff, 
which  had,  under  Lord  Kenyan' s  direction,  been  given  at  Guildhall. 

*In  a  more  recent  case  of  Suart  and  another  v.  Poivell,  (a)  p  ^jni  t 
which  was  tried  before  Mr.  J.  Littledale,  at  the  Summer  Assizes  L  J 

at  Lancaster,  1829,  and  which  was  an  action  on  a  policy  of  insurance  upon 
"the  ship  Ardent  and  freight,"  at  and  from  Sierra  Lxone,  or  other  the  ship's 
ports  or  places  of  loading  on  the  coast  of  Africa,  to  her  final  port  of  discharge 
in  the  United  Kinp;dom.  The  insurance  was  made  on  the  ship  '''■Ardent,'''  a 
British  registered  vessel  of  245  tons  burthen.  She  arrived  at  Sierra  L^eone, 
with  a  full  and  proper  complement  of  men.  The  case  turns  on  the  terms  of 
the  Navigation  Act,  6  Geo.  4,  c.  109,  which  requires  that  certain  ships  shall 
be  navigated  by  a  crew,  three  parts  of  which  are  British.  An  exemption  is 
given  if  a  due  proportion  of  such  seamen  cannot  be  procured  in  any  foreign 
port,  or  any  place  within  the  East  India  Company's  charter — or  if  the  pro- 
portion be  destroyed  during  the  voyage  by  any  unavoidable  circumstance,  and 
the  master  produce  a  certificate  of  the  facts  under  the  hand  of  a  British  Consul, 
or  two  known  British  merchants,  if  there  be  no  Consul  at  the  place  where  such 
facts  can  be  ascertained ;  or  in  the  want  of  such  certificate  if  the  master  prove 
the  facts  to  the  satisfaction  of  the  controller  of  customs  in  a  British  port,  or  of 
any  person  authorized  in  any  other  part  of  the  world,  to  inquire  into  the  navi- 
gation of  such  ship ;  it  was  held  that  the  ship  insured,  which  lost  her  propor- 
tion of  British  by  death  at  Sierra  Leone,  and  could  not,  at  least  upon  any 
reasonable  term,  replace  them,  except  with  foreigners,  was  within  the  excep- 
tion. And  the  vessel  having  been  lost  on  her  voyage  home  with  an  over  pro- 
portion of  foreign  hands,  it  was  further  held  that,  although  no  certificate  had 
been  obtained  pursuant  to  the  act,  the  assured  were  not  precluded  from  recover- 
ing against  the  underwriters,  the  circumstances  of  excuse  being  satisfactorily 
proved  to  a  jury  at  the  trial. 

The  case  of  Wedderburn  and  others  v.  Bell,  (b)  is  an  important  case  upon 
the  present  subject,  as  Lord  EUenborough  *lays  down  the  law  ^  ^p-,^  l 
respecting  the  extending  of  the  principle  of  implied  warranty  to  L  -"^  J 
the  soundness  of  the  sails  and  rigging,  as  well  as  to  the  sufficiency  of  the 
hnll.  It  was  an  insurance  upon  "goods"  on  board  the  Minorca,  at  and  from 
Jamaica  to  London,  at  a  premium  of  ten  guineas,  to  return  5  per  cent,  if  the 
ship  sailed  from  the  place  of  "rendezvous  with  convoy  for  the  voyage  and 
arrived."  The  ship  sailed  for  England  with  convoy  in  the  end  of  July, 
and  parted  from  the  fleet  on  the  12th  August,  and  was  never  more  heard  of, 
whence  she  was  supposed  to  have  foundered.  The  defence  rested  on  two 
grounds  :  first,  that  she  was  not  properly  equipped  with  sails :  and,  secondly, 
that  she  had  not  a  sufficient  crew.  It  appeared  in  evidence,  that  the  sails  which 
were  used  in  stormy  weather  were  in  good  condition,  but  that  her  maintop- 
gallant  sails  and  studding  sails,  which  are  useful  in  light  breezes,  were  extremely 


(a)   1  B.  &  Ad.  266.  (6)   1  Camp.  1. 


68  UPON  THE  BODY,  TACKLE,  ETC.  OF  THE  SHIP. 

rotten,  and  almost  quite  unserviceable.  The  evidence  about  the  state  of  the 
crew  was  contradictory.  Lord  EUenboroiigh. — "In  an  action  of  this  kind, 
the  plaintiffs  are  bound  to  prove,  not  only  that  the  ship  was  tiglit,  staunch  and 
strong,  but  that  she  was  properly  equipped  with  sails  and  other  stores,  and 
that  she  was  manned  with  a  sufficient  crew  to  navigate  her  on  the  voyage 
insured.  These  are  conditions  precedent  lo  the  policy  attachino-,  and  if  they 
were  not  complied  with,  so  that  the  perils  were  enhanced,  from  whatever  cause 
this  might  arise,  and  though  no  fraud  was  intended  by  the  assured,  the  under- 
writers have  a  right  to  say  they  are  not  liable.  The  hidl  of  the  ship,  in  tliis 
case,  was  sufficient  and  seaworthy,  but  it  appears  that  when  she  left  Jamaica 
her  sails  were  highly  defective.  It  is  not  enough  that  a  ship  is  supplied  with 
such  sails  as  are  essential  to  her  safety  from  the  perils  of  the  sea,  and  which 
might  enable  her,  if  not  intercepted,  from  at  some  period  or  other,  completing 
her  voyage.  A  person  who  underwrites  a  policy  upon  her,  has  a  right  to 
expect  that  she  will  be  so  equipped  with  sails  that  she  may  be  able  to  keep  up 
widi  the  convoy,  and  get  to  the  place  of  her  destination  with  reasonable  expe- 

*i9Q  1  <^^i^ioii-  ^^^  must  be  *rendered  as  secure  as  possible  from  capture 
L  J  by  the  enemy,  as  well  as  from  the  danger  of  winds  and  waves ; 

but  here  the  3Iinorca  appears  to  have  been  deficient  in  sails,  on  which  her  loss 
might  materially  depend :  and  if  so,  the  risk  being  thereby  gready  increased, 
the  policy  never  attached,  and  this  action  cannot  be  supported."  His  liordship 
also  thought,  that  upon  the  balance  of  the  evidence  the  crew  were  insufficient. 
The  defendant  obtained  a  verdict,  (a) 

But  although,  by  an  implied  warranty,  every  ship  insured  must  be  "sea- 
worthy" for  the  voyage  at  its  commencement,  still  the  assured  makes  no  war- 
ranty that  she  shall  continue  so.  In  the  case  of  the  Earl  of  March  v.  Pigot,  (b) 
Lord  Mansfield  (the  case  of  the  Mills  Frigate  being  menUoned  at  the  Bar) 
says,  "Tlie  assured  ought  to  know  whether  his  ship  was  'seawordiy'  or  not 
when  she  set  sail  on  the  voyage  insured;  but  how  should  he  know  the  condi- 
tion she  might  be  in  after  she  had  been  out  a  twelvemonth?"  And  his  Lord- 
ship again,  in  the  case  of  Eden  v.  Parkinson,  [c)  confirmed  Uiis  doctrine  by 
observing,  "By  an  implied  warranty  every  ship  insured  must  be  tight,  staunch 
and  strong;  but  it  is  sufficient  if  she  be  so  at  the  time  of  her  sailing:  she  may 
cease  to  be  so  in  twenty-four  hours  after  her  departure,  and  yet  the  underwriter 
will  continue  liable.  And  in  Watson  v.  Clarke,  (d)  which  was  an  appeal  from 
Scotland  to  the  House  of  Lords,  it  was  stated  to  be  a  clear  and  established 
principle,  that  if  a  ship  be  seaworthy  at  the  commencement  of  the  risk,  though 
she  becomes  otherwise  in  an  hour  from  that  time,  the  warranty  is  complied 
with  and  the  underwriter  liable." 

Neither  does  the  assured,  after  having  provided  a  sufficient  crew  and  master 
of  competent  skill  at  the  commencement  of  die  voyage,  make  any  warranty 
fliat  diey  shall  do  their  duty  during  the  continuation  of  it,  nor  are  the  under- 
writers discharged  from  dieir  liability  in  the  case  of  a  loss  immediately  caused 

^  1  '^y  ^^^^  ^'  ^'^^*  perils  insured  against,  although  remotely  *owing  to 

L  J  the  negligence  of  the  master  or  crew.     This  important  principle 

of  the  law  of  insurance  will  be  treated  of  more  fully  in  the  further  course  of 
this  Treatise,  though  it  will  also  discover  itself  in  what  has  to  follow  in  this 
section.  We  have,  likewise  seen,  that  it  is  recognized  in  the  case  of  Phillips 
v.  Ileadlani,  (a)  where  the  Court  lield  it  to  be  clear,  tliat  on  the  supposition 
that  the  master  was  a  person  of  competent  skill,  yet  if  he  acted  bond  fide, 

(a)  Sec  Wilkie  v.  Geddes,  ante,  p.  107.         (/y)  5  Burr.  2808. 

(c)  Doug.  732.  (d)   1  Dow.  336,  ante,  p.  106. 

(a)  2  B.  &  Ad.  380,  ante,  p.  118. 


UrON    THE    BODY,  TACKLE,   ETC.   OF    THE    SHIP.  69 

though  erroneously,  in  entering  a  port  without  a  pilot,  the  underwriters  would 
nevertheless  not  be  discharged. 

In  the  recent  case  of  Dixon  v.  Sadler,  (b)  to  which  we  have  already  referred, 
this  doctrine  was  fully  discussed  and  recognized  hy  the  Court  of  Exchequer, 
and  their  judgment  was  afterwards  coniirmed  on  a  writ  of  error,  (c)  It  was 
an  action  on  a  time  policy  on  the  John  Cook,  and  cargo,  at  and  from  the  17th 
of  January,  1838,  at  noon,  in  port  and  at  sea,  at  all  times  and  in  all  places, 
being  for  the  space  of  six  calendar  months.  The  declaration  averred  the  loss 
of  the  ship  to  have  taken  place  on  tiie  19tli  of  May,  1838,  by  perils  of  the 
sea.  Plea, — "That,  tliough  true  it  is  that  the  said  vessel  was  by  the  sea 
wrecked,  broken,  damaged,  and  injured,  and  became  and  was  wholly  lost  to 
the  plaiiitiHs,  for  plea,  nevertheless,  the  defendant  says,  that  the  said  wrecking, 
breaking,  damaging,  and  injuring  the  said  vessel,  and  the  loss  of  the  same  by 
perils  of  the  sea,  as  in  the  hrst  count  mentioned,  was  occasioned  wholly  by  the 
wilful,  wronjiful,  negligent,  and  improper  conduct  (the  same  not  being  barra- 
trous (</)  )  of  the  master  and  mariners  of  the  said  ship,  whilst  the  said  ship  was 
at  sea,  and  before  the  same  was  wrecked,  broken,  damaged,  injured,  or  lost, 
as  therein  mentioned,  by  wilfully,  wrongfully,  negligently,  and  improperly 
(but  not  barratrously)  throwing  overboard  so  much  of  the  ballast  of  the  said 
ship,  that  by  means  thereof  she  became  and  was  top-heavy,  crank,  unfit  to 
carry  sail,  and  wholly  unseaworthy,  *and  unfit  and  unable  to  endure  j-  ^,  _  -. 
and  encounter  the  perils  of  the  sea,  which  she  might  and  would  L  J 

otherwise  have  been  able  to  have  safely  encountered  and  endured,  and  by  means 
and  in  consequence  of  the  said  wilful,  wrongful,  negligent,  and  improper  (but 
not  barratrous)  conduct  of  the  said  master  and  mariners,  the  said  ship  became 
and  was  wrecked.  &.c. " 

..  At  the  trial,  before  Parke,  B.,  at  the  Spring  Assizes  for  jVorihumberland, 
it  appeared  that  the  vessel  left  Rotterdam  for  Sunderland,  properly  ballasted 
and  equipped,  on  the  15th  of  May,  and  arrived  on  the  19th  opposite  a  point 
called  Seahani,  about  four  miles  from  the  port  of  Sunderland.  On  arriving 
there,  and  ha\ing  a  pilot  on  board,  the  master  commenced  heaving  part  of  his 
ballast  overboard,  as  was  proved  to  be  usual  on  such  occasion.  Whilst  this 
was  going  on,  the  vessel  drifted  to  the  northward,  and  a  strong  squall  coming 
on  from  the  south-east,  the  ship  was  upset  on  her  broadside,  and  her  masts  lay 
in  the  water.  Every  endeavour  was  made  to  right  her,  but  in  vain.  She 
afterwards  sunk,  drifted  on  shore,  and  became  a  total  wreck.  If  the  crew  had 
not  removed  the  ballast,  the  ship  would  most  likely  have  stood  the  squall.  His 
Lordship  left  two  questions  for  the  jury.  First,  was  it  negligent  conduct  to 
tlirow  ballast  overboard  before  arriving  in  the  harbour.^  Secondly,  did  they 
think  the  master  exercised  a  reasonable  discretion  in  throwing  it  overboard.^ 

The  jury  found  that  they  did  think  it  negligent  Secondly,  that  the  master 
did  right,  supposing  the  practice  authorized  him.  A  verdict  was  therefore 
entered  for  the  defendant,  the  plaintiff  having  leave  to  move  to  enter  a  verdict. 
After  argument  at  the  Bar,  the  judgment  of  the  Court  was  snbsequendy  deliv- 
ered by  Parke,  B.  —  '"The  plea,  in  its  present  state,  raises  the  question, 
whether  the  imderwriters  are  liable  for  the  wilful,  but  not  barratrous,  act  of  the 
master  and  crew  in  rendering  the  vessel  unseaworthy,  before  the  end  of  the 
voyage,  by  casting  overboard  a  part  of  the  ballast.  We  have  considered  it, 
and  are  of  opinion  that  the  plea  is  bad  in  substance,  and  that  die  plaintiff  is 
entided  to  judgment,  notwithstanding  the  verdict.     The  question  depends  alto- 


{b)  5  M.  &  W.  405.  (c)  8  M.  &  W.  890. 

(//)  These  words  were  added  in  the  plea  during  the  argument  by  the  suggestion  of  the 
Court. 


70  UPON   THE    BODY,  TACKLE,  ETC.    OF    THE    SHIP. 

r  *12fi  1  gether  upon  the  nature  *of  the  impHed  warranty  as  to  seaworthi- 
L  -J  ness  or  mode  of  navigation  between  the  assured  and  the  underwriter 

on  a  time  policy.  In  the  ease  of  an  insurance  for  a  certain  voyage,  it  is  clearly 
established  that  there  is  an  implied  warranty  that  the  vessel  shall  be  in  a  fit 
state  as  to  repairs,  equipment,  and  crew,  and  in  all  other  respects  to  encounter 
the  ordinary  perils  of  the  voyage  at  the  time  of  sailing  upon  it.  If  the  assurance 
attaches  before  the  voyage  commences,  it  is  enough  that  the  state  of  the  ship 
be  then  commensurate  with  her  present  risk;  and  if  the  voyage  be  such  as  to 
require  a  different  complement  of  men  or  state  of  equipment  in  different  parts  of 
it,  as  if  it  were  a  voyage  down  a  canal  or  river,  and  thence  across  to  the  open  sea, 
it  would  be  enough  if  the  vessel  were,  at  the  commencement  of  each  stage  of  the 
navigation,  properly  manned  and  equipped  for  it.  But  the  assured  makes  no 
warranty  to  the  underwriters  that  the  vessel  shall  continue  seaworthy,  or  that 
the  master  or  crew  shall  do  their  duty  during  the  voyage ;  and  their  negligence 
or  misconduct  is  no  defence  to  an  action  on  the  policy,  when  the  loss  has  been 
immediately  occasioned  by  the  perils  insured  against.  This  principle  is  now 
clearly  established  by  the  authorities,  nor  can  any  distinction  be  made  between 
the  omission  by  the  master  and  crew  to  do  any  act  which  ought  to  be  done,  or 
the  doing  an  act  which  ought  not,  in  the  course  of  the  navigation.  It  mat- 
ters not  whether  a  fire,  which  causes  a  loss,  be  lighted  improperly,  or,  after 
being  properly  lighted,  be  negligently  attended  ;  whether  the  loss  of  an  anchor, 
which  renders  the  vessel  unseaworthy,  be  attributable  to  the  omission  to  take 
proper  care  of  it,  or  to  the  improper  act  of  shipping  it,  or  cutting  it  away  ;  nor 
could  it  make  any  difference  wheliier  any  other  part  of  the  equipment  was  lost 
by  mere  neglect,  or  thrown  away  or  destroyed,  in  the  exercise  of  an  improper 
discretion  by  those  on  board.  If  there  be  any  fault  in  the  crew,  whether  of 
omission  or  commission,  the  assured  is  not  to  be  responsible  for  its  conse- 
quences. The  great  principle  established  by  the  recent  decisions  is,  that  if  the 
r  *i  OT  n  vessel,  crew,  and  equipments  be  originahy  sufllicient,  the  assured  has 
L  'J  done  *all  he  contracted  to  do,  and  is  not  responsible  for  the  subse- 

quent deficiency  occasioned  by  any  neglect  or  misconduct  of  the  master  or  crew, 
and  this  principle  prevents  many  nice  and  difficult  inquiries,  and  causes  a  more 
complete  indemnity  to  the  assured,  which  is  the  object  of  the  contract  of  insu- 
rance. The  only  remaining  point  is  wliether  the  circumstance  of  this  being  a 
time  policy  makes  a  difference.  There  are  not  any  cases  in  which  the  obliga- 
tion of  the  assured  in  such  a  case,  as  to  the  seaworthiness  or  navigation  of  the 
vessel,  is  setffed ;  but  it  may  be  safely  laid  down  that  it  is  not  more  extensive 
than  in  the  case  of  an  ordinary  policy,  and  that  if  there  is  no  contract  for  the 
conduct  of  the  crew  in  the  one  sense,  there  is  none  in  the  other,  (a)  Here  it 
is  clear  that  no  obligation  arises  on  the  ground  of  the  unseaworthiness  of  the 
vessel,  until  that  unseaworthiness  was  caused  by  the  throwing  overboard  a  part 
of  the  baffast  by  the  improper  act  of  the  master  and  crew,  and  as  the  insured  is 
not  responsible  for  such  improper  act,  we  are  of  opinion  that  the  plea  is  bad  in 
substance,  and  that  the  plaintiff  is  entitled  to  our  judgment." 

The  general  rule,  however,  that  a  ship  must  be  seaworthy  at  the  commence- 
ment of  her  voyage,  or  the  underwriters  are  discharged,  seems  to  admit  of  this 
proper  qualification,  that,  if  a  ship,  by  mistake  or  accident,  has  sailed  out  of 
port  in  an  unseaworthy  state,  and  this  fact  is  discovered  before  any  loss  has 
occurred,  and  the  defect  is  remedied,  and  she  then  proceeds  in  a  seaworthy  con- 
dition, the  underwriter  will  be  liable  for  a  subsequent  loss.  This  was  held  in 
the  case  of  fVeir  v.  Aberdcin.  {I))     It  appeared  that  ship  sailed  from  Londoiij 


(a)  That  there  is  no  distinction  in  this  respect  between  a  time  policy  and  a  policy  for  a 
voyage,  see  HoUingworth  v.  Brodrick,  7  A.  &  E.  47. 
{b)  2  B.  «Sc  A.  320. 


UPON    THE    BODY,  TACKLE,   ETC.   OF    THE    SHIP.  71 

on  her  voyage,  on  the  18th  of  March,  laden  with  iron,  and  that  between 
Dungeness  and  Bcachy  Head  she  laboured  so  much  that  it  became  necessary 
to  pu1  back  to  tlic  Downs,  from  whence  she  sailed  again  on  the  27th,  but  she 
still  laboured  so  as  to  make  it  necessary  to  bear  up  again  for  the  ^  ^.j^g  "i 
Downs,  *whorc  slie  arrived  on  the  30th.     The  plaintiff  (who  was  L  J 

both  captain  and  owner)  made  a  protest,  and  came  up  to  London,  to  consult 
with  the  charterer  about  unloading  part  of  the  cargo.  On  his  arrival  he  in- 
formed his  insurance-broker  that  it  would  be  necessary  to  put  into  some  port  to 
unload  part  of  tlie  cargo.  The  broker  applied  to  the  underwriters,  and  a  memo- 
ranilum,  signed  by  tlie  defendant,  was  indorsed  on  the  policy  to  this  effect : — 
''It  is  agreed  that" the  Prince  Coburg  may  load,  unload,  and  reload  goods,  and 
discharge  part  of  her  cargo  at  Rams  gate  i''  but  he  did  not  communicate  the 
fact,  that  the  ship  had  put  back  from  Beuchy  Head,  or  that  a  protest  had  been 
made.  The  plaintiff,  on  his  return  to  i>e«/,'had  the  ship  surveyed,  and,  under 
the  advice  of  the  surveyors  that  it  Avas  necessary  to  lighten  her,  he  put  into 
JRamsgate  harbour,  and  unshipped  part  of  the  cargo.  He  then  proceeded  on 
the  voyage  insured,  in  the  course  of  which  the  loss  took  place.  It  was  objected, 
on  the  part  of  the  defendant,  that  the  ship,  having  been  overladen,  was  unsea- 
worthy  at  the  commencement  of  the  voyage,  and  that  the  memorandum  was 
invalid  from  having  been  obtained  without  making  a  due  communication  to  the 
underwriters. 

The  jury  found,  that  when  the  ship  sailed  from  Bumsgate  she  was  then  in 
a  seaworthy  state,  and  that  the  subsequent  loss  was  not  in  any  degree  attribu- 
table to  the  circumstance  of  her  being  overladen  between  London  and  Rams- 
gate.  And  the  verdict  was  entered  for  the  plaintifl'.  Upon  the  motion  for  a 
new  trial,  Abbott,  C.  J.,  said  : — "  It  is  said  that  this  memorandum,  expressing 
the  consent  of  the  underwriters,  is  void,  and  that,  in  order  to  bind  the  under- 
writers, a  new  contract  was  necessary,  inasmuch  as  the  fact  of  the  vessel 
having  once  sailed  with  a  cargo  greater  than  was  proper  for  that  voyage,  and 
therefore  in  an  unseaworthy  state,  wholly  put  an  end  to  their  liability  on 
the  policy.  That  proposition  would  go  the  length  of  establishing,  that  if  a 
vessel,  at  the  outset  of  her  voyage,  be  by  mistake  or  accident  unseaworthy, 
owing  to  some  defect,  which  is  immediately  discovered  and  remedied  before  any 
loss  happens  in  consequence  of  it,  still  that  the  *policy  would  be  r-  -loQ  1 
void,  and  the  underwriters  not  liable.     I  confess  that  I  was  a  little  ^  -• 

surprised  at  that  proposition,  because,  if  true  in  point  of  law,  I  fear  we  should 
find  many  c^ses  indeed  where  it  would  turn  out  that  the  assured  could  have  no 
claim  upon  the  underwriter,  because  something  was  wanting,  or  something 
excessive,  at  the  instant  of  the  ship's  departure,  although  the  want  had  been  sup- 
plied, or  the  excess  removed  before  the  loss  happened.  Suppose,  for  instance, 
a  vessel  is  unseaworthy,  unless  she  has  two  anchors,  being  destined  for  a  long 
voyage,  and  she  sails  from  London  to  Gravesend  \\'\\\\  only  one,  shall  it  be  said 
that  if  no  loss  happens  between  LjOndon  and  Gravesend,  and  tlie  vessel  at 
Gravesend  takes  in  her  second  anchor,  and  then  proceeds  on  her  voyage,  that 
the  underwriters  are  not  liable  for  a  subsequent  loss,  and  that  the  policy  is  so 
completely  at  an  end  that,  even  if  the  underwriters  agree  to  waive  the  objection, 
and  to  allow  her  to  proceed  on  her  voyage,  their  consent  shall  be  unavailing? 
These  inconveniences,  Avhich  would  be  continually  occurring  in  practice,  would 
lead  to  dangerous  consequences,  bj-  opening  a  door  to  underwriters  to  break 
their  engagements  by  means  of  trivial  circumstances,  the  effect  of  which  no 
one  ever  contemplated.  I  think,  therefore,  that  that  proposition  cannot  be  main- 
tained. Widi  respect  to  the  sufficiency  of  the  communication  made  to  the  under- 
writers, it  is  quite  clear  diat  the  underwriters  were  told  all  that  was  in  substance 
necessary  for  them  to  know  ;  for  they  were  told  that  the  vessel,  when  she 
sailed,  had  too  large  a  cargo  on  board,  and  that  she  was  not  in  a  situation  fit  to 


72  UPON  THE  BODY,  TACKLE,  ETC.  OF  THE  SHIP. 

perform  her  voyage.      Upon  the  whole,  therefore,  I  think  this  rule  must  be 
refused."     The  rest  of  the  Court  concurred. 

That  the  implied  warranty  of  the  seaworthiness  of  a  ship  has  a  reference 
only  to  her  condition  at  tlie  commencement  of  the  risk,  and  does  not  extend  to 
any  other  period  of  the  voyage  (except  in  those  instances  where  something  is 
to  be  done,  as  tlie  taking  on  board  of  a  pilot  in  die  usual  course  of  the  navi- 
gation,) there  can  be  no  doubt.  But  some  question  may  arise  whether  the 
r  *1'^0  "1  ^^•'''•'I'^tl?  in  case  the  ship  becomes  unseawordiy  *in  the  course  of 
L  J  the  voyage,  and  the  fact  comes  to  his  knowledge,  and  she  can  by 

reasonable  care  and  diligence  be  rendered  seaworthy,  is  not  in  such  a  case  bound 
to  repair  her,  and  whether,  in  his  failing  to  do  that,  and  a  loss  arises  in  conse- 
quence, the  underwriters  would  not  be  discharged  from  their  liability.  It  ap- 
pears, however,  very  clear  that  the  fact  must  come  to  the  knowledge  of  the 
assured,  for  the  implied  warranty  extends  only  to  the  commencement  of  tlic 
voyage,  when  the  assured  is  bound  to  know  whether  die  ship  is  seawordiy  or 
not.  This  question  came  before  the  Court  of  King's  Bench,  in  a  recent  case  of 
Hollinf>:worth  v.  Brodrick.  («)  But,  inasmuch  as  the  Court  held  that  the  plea 
was  itself  defective,  they  found  it  unnecessary  to  pronounce  any  direct  decision 
upon  the  principal  question  in  the  case.  As,  however,  the  leaning  of  the  minds 
of  the  Judges  present  may  be  gathered  from  what  fell  from  them  on  the  occa- 
sion, I  shall  briefly  refer  to  the  case  in  question. 

It  was  an  action  on  a  time  policy  for  twelve  calendar  months  upon  any  kind 
of  goods  and  merchandises,  and  also  upon  the  body,  &c.  of  the  ship  Augus- 
tine. The  declaration  stated  that  ''during  the  said  twelve  calendar  months, 
and  whilst  tlie  said  ship  was  attempting  to  prosecute  a  voyage  wliich  was  pro- 
tected by  the  said  policy,  to  wit  on,  &c.,  the  said  ship  was  by  die  perils  and 
dangers  of  die  sea,  and  by  stormy  and  tempestuous  weather,  and  the  violence 
of  tlie  winds  and  waves  broken,  damaged,  spoiled,  and  destroyed,  and  the  said 
ship  thereby  became  and  was  wholly  lost  to  the  plaintitr. "  Plea.  "That 
after  the  making  of  the  said  policy  in  the  said  declaration  mentioned,  and  during 
the  said  time  die  said  ship  or  vessel  was  insured  as  therein  mentioned,  and 
before  the  loss  as  in  the  declaration  mentioned,  the  said  ship  or  vessel  was 
greatly  broken,  damaged,  shattered,  loosened  and  unseaworthy  ;  but  the  same 
by  and  widi  reasonable  care  and  diligence  in  diat  behalf,  and  at  and  for  a  very 
small  cost  and  sum  as  compared  with  the  value  of  the  said  ship  or  vessel,  might 
r  *i^i  -1  ^'I'l  t'ould  and  ought  to  have  been  by  the  said  plaintifl' repaired, 
L  *  J  ^amended,  and  rendered  seaworthy  :  yet  die  said  plaintifl',  well 
knowing  the  premises,  did  not  nor  would  repair,  amend  and  render  the  said 
ship  seaworthy,  but  wholly  neglected  and  refused  so  to  do  ;  and  she  so  remained 
and  continued  in  such  unseaworthy  state  and  condition  until  the  time  of  the  loss 
in  the  said  declaration  mentioned."     To  this  plea  the  defendant  demurred. 

Lord  Denman,  C  .1. — "'I'lie  defence  of  unseaworthiness  is  generally  ap- 
plied to  the  time  when  the  risk  commences;  that  is  not  done  here,  nor  is  the 
loss  stated  to  have  liappened  in  (•onse(iu('nce  of  the  unseaworthiness  super- 
vening. I  own  I  fetil  a  doubt,  whrdier,  if  it  were  distinctly  averred  that  the 
ship  had  by  gross  negligence  been  brought,  during  the  voyage,  to  a  condition 
in  which  she  would  not  be  insurable  diat  would  not  be  a  defence.  It  is  cer- 
tainly a  new,  and  perhaps  a  dangerous  one ;  Init  I  think  tiiut,  if  it  were  clearly 
made  out,  the  assured  could  not  say  Uiat  tiie  loss  was  by  perils  insured  against. 
'JMie  case,  however,  is  not  siu-Ii  here.  In  die  first  place  it  is  not  (Jislincdy 
averred  that  the  plaintifl"  knew  the  precise  danger,  for  the  words  "-knowing 
the  premises"  do  not  amount  to  such  an  averment.     And  secondly,  it  is  not 

(«)  7  A.  &  E.  40. 


UPON  THE  BODY,  TACKLE,  ETC.  OF  THE  SHIP.  73 

said  tliat,  except  for  gross  negligence  the  ship  might  have  been  restored  to  a 
seaworthy  state  before  the  loss  actually  happened.  TIic  averment  that  with 
"rciusonable  care"  the  ship  might  liave  been  repaired  and  rendered  seaworthy, 
does  not  show  there  was  gross  negligence  in  not  doing  so.  Therefore,  even 
supposing  die  law  to  be  as  I  at  first  suggested  (whicli  I  liave  some  doubts  of, 
from  the  noveltv  and  dangerous  nature  of  the  defence,)  it  cannot  apply  here  ; 
aiul  the  plaiiitid'  is  entided  to  judgment." 

Patleson,  J. — "The  defence  is  put  entirely  on  die  fact  diat  the  ship,  daring 
the  voyage,  "was  unseawordiy."  It  is  not  stated  diat  she  became  so  through 
neglect,  to  repair  from  time  to  time,  and  that  that  occasioned  die  loss.  1  do 
not  know  that  diat  would  have  been  a  defence.  But  it  is  only  said  that  by 
some  means  the  ship  was  gready  damaged.  It  is  clear  that  the  implied  war- 
ranty of  seaworthiness  is  satisfied  if  *the  ship  be  seaworthy  at  the  r-  ^loo  "i 
commencement  of  the  risk.     1  do  not  know  of  any  distinction  on  >-  -^ 

account  of  the  risk  being  for  time.  Unseaworthiness,  for  want  of  a  particular 
description  of  crew  is  an  exception  to  the  rule,  because  one  crew  may  be  ne- 
cessary for  one  part  of  the  voyage,  and  another  for  another.  Tliat  case  is 
difierent  from  the  case  of  unseawordiiness  owing  to  something  in  the  condition 
of  tlie  vessel.  Even  if  it  could  be  contended  that  a  default  of  the  owner,  after 
the  commencement  of  the  voyage,  might  be  set  up  in  the  manner  here  attempted, 
I  should  say  that  the  loss  ought  to  be  traced  to  that,  because  the  defence  is  no 
longer  rested  on  the  implied  warranty,  but  is  something  actually  done  by  the 
owner.  Here  the  endeavour  is  to  make  the  implied  warranty  extend  to  every 
period  of  the  voyage  where  the  owner  could  do  anything  for  the  ship,  making 
him  responsible,  even  diough  the  loss  be  not  caused  by  his  omitting  any  of 
these  things.  There  is  no  authority  for  such  a  position.  The  plea  is  loosely 
drawn,  even  according  to  the  defendant's  view  of  the  case.  It  should  have 
stated  that  the  plaintiff  was  aware  of  the  unseaworthiness,  and  that  there  was 
time  for  repairing  before  die  loss  happened  :  and,  supposing  diat  in  die  case  of 
a  time  policy,  the  assured  was  held  to  a  warranty  of  seawordiiness,  at  the 
commencement  of  each  voyage  during  the  time,  the  allegations  should  have 
been  shaped  accordingly.  But  I  wisli  to  go  upon  the  broad  ground,  that  no 
■warranty  of  seaworthiness  is  to  be  implied,  except  at  the  commencement  of 
the  voyage." 

Tliere  is,  indeed,  an  implied  warranty  on  the  part  of  the  assured  that  a  loss 
shall  not  occur  through  Ids  own  default,  and  therefore  it  was  held  in  the  case 
of  Pipon  V.  Cope,  {ii)  that,  when  through  the  negligence  of  the  owner  of  a  ship 
insured,  the  mariners  barratrously  carried  smuggled  goods  on  board,  whereby 
the  ship  was  seized  as  forfeited,  the  underwriters  were  not  liable  for  the  loss. 
Lord  Ellenborough  there  says,  "this  is  a  clear  case  of  crassa  negligentia  on 
the  part  of  the  assured.  It  was  the  plaintiff's  duty  to  have  pre-  r-  ^loo  n 
vented  *these  repeated  acts  of  smuggling  by  the  crew.      By  his  ^  J 

neorlecting  to  do  so,  and  allowing  the  risk  to  be  so  monstrously  enhanced,  die 
underwriters  are  discharged."  And  the  learned  reporter  of  diis  case  adds, 
"The  supineness  of  the  plaintiff  in  this  case  may  be  considered  as  a  breach  of 
an  implied  warranty  on  the  part  of  the  assured  to  use  reasonable  care  and  dili- 
gence to  guard  against  all  the  risks  covered  by  the  policy."  [a]  And  in  an  after- 
part  of  this  work  we  shall  see  that  if  the  assured  navigates  against  the  laws  of  the 
country  in  which  he  happens  to  be,  he  shall  not  recover  for  any  loss  arising  out 
of  such  misconduct,  for  this  is  a  gross  fraud  on  the  part  of  the  owner  of  the 
property  insured,  and  no  man  shall  take  advantage  of  his  own  wrong,  [b) 

(n)   1  Camp.  434. 

(a)  See  Law  v.  Hollingsvvortb,  7  T.  K.  IGO,  ante,  p.  45. 

lb)  See  2  Vern.  176,  post. 


74  UPON    THE    BODY,  TACKLE,   ETC.   OF    THE    SHIP. 

And  in  the  case  of  Boyd  v,  Dubois,  (c)  which  was  an  action  on  a  policy  on 
some  hemp,  and  the  loss  was  alleged  to  be  "by  fire,"  Lord  Ellcyiborough 
said,  "If  the  hemp  was  put  on  board  in  a  state  liable  to  effervesce,  and  it  did 
effervesce,  and  generate  the  fire,  upon  the  common  principles  of  insurance  the 
assured  cannot  recover  for  a  loss  which  he  has  himself  occasioned.  But  I 
must  positively  say  that  they  were  not  bound  to  represent  to  the  underwriters 
the  state  of  the  goods,  it  would  introduce  endless  confusion  and  perpetual  con- 
troversies if  such  a  duty  was  to  be  imposed  upon  the  assured." 

Inasmuch,  as  the  implied  warranty  of  the  seaworthiness  of  the  ship  is  an 
essential  insrredient  in  the  contract  entered  into  between  the  assured  and  the 
underwriter,  it  would,  consequently,  be  irrelevant  to  the  contract  to  make  any 
representation  of  tlie  condition  of  the  ship,  because  that  is  entirely  dispensed 
with  by  the  underwriter,  he  haA'ing  his  remedy  in  his  own  hands.  In  a  case 
of  Shoolbrcd  v.  Nutt,  (d)  which  was  an  action  on  a  valued  policy  of  insurance 
upon  the  sliip  Two  Sisters,  and  a  cargo  of  wheat  and  wines  from  Madeira 
i-    ^  -,  to  Charlestotvn ;  the  ship  had  sailed  from  London  *to  Madeira. 

L  J  The  assured,  who  was  the  owner  of  the  cargo,  ordered  his  broker 

to  procure  an  insurance  from  Madeira  for  the  voyage  to  Charlestown,  which 
Avas  accordingly  done ;  but  he  did  not  communicate  to  the  broker  or  the  under- 
writers two  letters  which  he  had  received  from  his  captain  the  day  before  he 
made  the  insurance,  stating  that  the  ship  had  arrived  at  Madeira,  but  was  very 
leaky,  and  that  the  pipes  of  v/ine  had  been  half  covered  with  water.  But  it 
was  proved  at  the  trial,  that  the  leak  had  been  completely  stopped  before  she 
sailed  from  Madeira,  and  of  course,  before  the  commencement  of  the  risk 
insured.  In  her  voyage  to  Charlestoivn  she  was  taken,  and  the  plaintifl'  aban- 
doned, liord  Mansfield  told  the  jury  "that  there  should  be  a  representation 
of  every  thing  relating  to  the  risk,  which  the  underwriter  has  to  run,  except  it 
be  covered  by  a  warranty.  It  is  a  condition  or  implied  warranty  in  every 
policy  tliat  the  ship  is  seaworthy,  and,  therefore,  there  need  be  no  represen- 
tation of  that.  If  she  sailed  without  being  so,  there  is  no  valid  policy.  Here 
the  leak  was  stopped  before  she  sailed  from  Madeira,  and  she  sailed  in  good 
condition  from  thence;  and  there  is  no  occasion  to  state  the  condition  of  a  ship 
or  cargo  at  the  end  of  her  former  voyage.  "  There  was  a  verdict  for  the 
plaintiff. 

And  upon  the  authority  of  tliis  case,  and  the  reason  of  the  thing;  it  was 
declared,  in  the  case  of  Haywood  v.  Rogers,  [a)  after  time  taken  to  deliberate, 
that  the  assured  having  impliedly  warranted  his  ship  to  be  seaworthy,  and 
having  concealed  no  circumstance  relative  to  the  seaworthiness  which  he  was 
required  to  disclose,  and  not  having  at  the  time  of  making  the  insurance, 
known  of  any  fact  which  rendered  her  with  reference  to  the  risk  insured, 
otherwise  than  seaworthy,  Avas  entided  to  recover. 

Tlu!  doctrine  established  by  the  laws  of  this  country  is  not  confined  to  it, 
but  exists  as  well  in  nil  the  maritime  countries  in  Europe.  By  the  Code  de 
r  -iQf;  "1  Commerce,  every  *ship  is  to  be  visited  previous  to  her  setting  sail 
L  J  on  her  voyage,  and  a  report  is  to  be  made  of  the  condition  in 

which  she  is  found.  A  modern  writer  (a)  on  this  subject  says: — "L'article 
225,  en  prescrivant  au  capitaine  d'un  navire  de  commerce  le  devoir  de  faire 
visiter  son  navire  avant  de  prendre  charge,  aux  termes  et  dans  les  formes 
prescrits  par  les  reglements,  prcscrit  aussi  aux  visiteurs  de  deposer  le  proces 


(c)   3  Camp.  132. 

{(])  Hit.  ill  Guild,  after  Hil.  1782'.     Park  Ins.  493. 
(rt)  4  East,  .590. 

(«)  See  "Mcmoire  a  consulter  sur  le  legalite  de  la  visite  dcs  navires,  par  un  membre  de 
rancicnne  commission  librc  du  port  d'Anvcrs."     Anvcrs,  1841. 


UPON  THE  BODY,  TACKLE,  ETC.  OF  THE  SHIP.  75 

verbnl  de  visite  au  s:refle  du  tribunal  de  cominercp,  ou  il  en  est  delivrc  extraitc 
an  capitaine.  Cette  visite  a  evidemment  pour  but  de  constater  I'etat  du  navire, 
de  s'assurer  s'il  est  a  nieme  de  soutenir  la  navis^ation,  s'il  est  muni  de  tout  ce 
qui  lui  est  necessarie  pour  le  voyage  qu'il  doit  faire  ;  oUe  se  fait  avant  de  prendre 
charge  afin  qu'on  puisse  recognaitro  I'etat  du  navire  taut  a  I'interieur  qu'd 
I'exterieur."  And  the  same  writer,  speaking  of  tlie  Code  de  Commerce  Beige, 
adds  : — "Dans  ce  noveau  code,  I'art  15,  livre  2,  litre  3,  droit  remplacer  Par- 
ticle 225,  du  Code  de  Commerce  encore  en  vigeur;  cet  article  portait:  'avant 
de  prendre  charge  pour  un  voyage  a  I'exterieur,  le  capitaine  est  tenu,  a  la 
requisition  et  aux  frais  de  toutes  Ics  personnes  y  ay  ant  interet,  de  faire  examiner 
par  les  exports  jures,  etablis  a  cet  efTet  ou  nommes  par  le  juge,  si  son  navire 
est  pouvu  de  tout  ce  qui  est  necessaire,  et  se  trouve  en  etat  de  faire  le  voyage!"  («.) 
In  the  ordinances  of  Louis  the  Fourteenth,  [b)  it  is  declared,  that  decay, 
waste,  or  loss,  which  happen  from  the  internal  defect  of  the  insured  ship  shall 
not  fall  upon  the  underwriter.  A  commentator  upon  these  ordinances,  has 
gone  into  the  reason  and  principle  of  such  a  regulation,  and  has  shewn  the 
propriety  of  it.  (c)  He  sets  out  by  observing,  that  this  doctrine  is  of  a  date 
as  ancient  as  the  period  when  the  French  treatise  called  "/.c  Guidon^'  was 
published,  which  M-as  about  the  year  1661  ;  at  which  time,  as  appears  by  a 
reference  to  the  book  itself,  it  was  considered  as  a  settled  principle,  ^  sio«  n 
*that  losses  happening  from  causes  of  this  nature,  were  not  to  be  a  L  J 

charge  on  the  unilerwriter.  («)     The  same  author  has  also  shewn,  that  such  a 
provision  is  adopted  in  favour  of  the  assurers  by  the  ordinances  oi'  Rotterdam 
and  Jlmsterdcim.  (6)     After  stating  these  circumstances,  he  proceeds  to  say, 
that  when  a  ship  is  deemed  incapable  of  finishing  her  voyage,  the  question 
,  whether  this  event  is  a  charge  upon  the  underwriters  depends  upon  another, 
viz : — whether  it  happened  by  the  violence  of  the  sea,  or  other  fortuitous  cir- 
cumstances,  or  whether  the  disability  proceeds  from  age  and  rottenness,  (c) 
This  will  be  determined  by  the  inquiry  which  was  made  before  the  departure 
of  the  ship,  in  order  to  Judge  whether  it  was  in  a  condition  to  perform  the 
voyage  or  not ;  if  the  latter  was  tire  case,  the  assurers  ought  not  to  answer. 
In  another  part  of  this  work,  he  declares  that  the  indemnity  will  be  void,  even 
though  the  ship  has  been  examined  before  her  departure,  and  declared  capable 
of  performing  the  voyage ;  since  the  event  has  clearly  shewn,  that  on  account 
of  latent  defects  it  was  no  longer  navigable ;  that  is,  if  it  v/ere  proved  that  the 
parts  of  the  ship  were  so  rotten,  weakened  and  destroyed,  that  she  was  not 
in  a  proper  state  to  resist  the  ordinary  attacks  of  wind  and  sea,  inevitable  in 
every  vova^e,  then  the  underwriters  are  discharged.     The  reason  is,  that  the 
examination  before  departure  extends  only  to  the  external  parts,  because  she 
is  not  unripped  :  at  least,  not  so  as  to  discover  the  interior  and  latent  defects,  ((/) 
for  which  the  owner  or  master  of  the  ship  continues  always  responsible,  and 
that  with  the  greater  justice,  because  they  cannot  be  wholly  ignorant  of  the 
bad  state  of  the  ship ;   but  supposing  them  to  be  so,   it   is  the  same  thing, 
being  indispensably  bound  to  provide  a  "good"  ship,  able  to  perform  the  voy- 
age, (e) 

(a)  See  "Mcmoire  a  consulter  sur  le  legalite  de  la  visite  des  navires,  par  un  membre  de 
I'ancienne  commission  libre  du  port  d'Anvers."     Anvers,  184  1. 

(6)  Ord.  of  Louis  14th.  tit.  Insurance,  art.  12. 

(c)  2  Val.  80.  (a)  C.  h,  art.  3. 

(6)  2  Val.  90,  140.  (c)  2  Val.  81. 

{d)   1  Val.  654.     See  per  Lord  Eldon,  in  Douglas  v.  Scougall,  4 ;  Dow.  269,  ante,  p.  106. 

(e)  See  Roccus,  note  98,  upon  the  doctrine  of  implied  conditions,  and  see  how  agreeable 
the  above  doctrine  is  to  the  decisions  in  the  cases  already  quoted  of  Lee  v.  Beach  ;  Munro 
V.  Vandam,  and  some  others. 


76  UPON  THE  BODY,  TACKLE,  ETC.  OF  THE  SHIP. 

p    ^iqiy     -1       *The  opinon  of  tliis  learned  commentator  is  supported  by  two  of 
'-  J  his  countrymen  of  the  greatest  note,  on  subjects  of  this  description, 

viz  :  Pothier  and  the  great  Emcrigon. 

It  is  interesting,  as  well  as  instructive,  to  observe  from  the  opinions  of  the 
learned  Valhi  in  the  passages  just  quoted,  how  the  nolions  of  the  early  foreign 
writers,  and  the  rules,  regulations,  laws,  and  ordinances  of  foreign  maritime 
states  in  ancient  times  coincide  in  so  remarkable  a  manner  with  tlie  settled  deci- 
sions of  the  Courts  of  Justice  of  this  country  upon  tliis  ancient  and  interesting 
subject  of  contract.  This  similarity  can  have  sprung  up  between  them  only 
by  the  fact  of  the  earlier  administrators  of  the  law  of  this  country  looking  for 
information  and  guidance  in  such  subjects  to  the  writings  of  these  learned  men 
who  have  left  behind  them  so  many  proofs  and  monuments  of  their  great  industry 
and  researches  :  and  also  it  is  reasonable  to  suppose  that  this  accordance  between 
the  ancient  system  of  rules,  and  the  more  late  body  of  law  which  has  been  by 
degrees  made  on  the  subject  in  this  country,  may  well  enough  be  as  much 
owing  to  the  effect  which  the  great  learning,  and  splendid  talents,  and  acute 
powers  of  reasoning  on  the  principles  of  die  subject  have  in  each  case  (both  by 
the  English  lawyers  and  the  foreign  jurists)  out  of  the  same  materials  formed 
a  structure  in  no  very  great  degree  differing  the  one  from  the  other.  Thus 
Lord  Mansfield  himself  expresses  himself  in  his  judgment  in  the  case  oi  Fel/y 
V.  The  Boi/al  Exchange  ./issurance  Company,  [a) 

His  Lordship  says,  "'from  the  nature,  object,  and  utility  of  this  contract, 
consequences  have  been  drawn,  and  a  system  of  construction  estal)lislicd  upon 
thf>  ancient  and  inaccurate  form  of  words  in  which  the  instrument  is  conceived. 
The  mercantile  law  in  this  respect  is  the  same  all  over  the  world.  For  from 
the  same  premises  the  sound  conclusion  of  reason  and  justice  must  be  univer- 
sally the  same." 

And  Lord  Chief  Justice  Denman,  in  the  recent  case  of  Shipton  v.  Thorn- 
r  wf^a  n  ^^^'>  (^)  (^^hich  has  been  alluded  to  before,  *and  will  presently  be 
•-  '  J  mentioned  again  more  fully,)  says  that  a  question  which  was  for 
the  present  consideration  of  the  Court,  "must  turn  upon  the  nature  of  the  con- 
tract between  the  parties,  as  it  is  to  be  collected  from  our  own  books,  and  from 
those  foreign  laws  and  ordinances,  as  well  as  the  writings  of  jurists  to  whicli 
our  country  have  long  been  accustomed  to  have  recourse  for  guidance  on  sub- 
jects of  this  nature." 

We  have  now  considered  under  the  present  head  of  this  subject,  what  was 
meant  bv  tlie  term  "-good,"  as  applied  to  the  "siiip,"  and  have  mentioned 
most  of  the  authorities,  as  well  those  of  our  Courts  of  Law  as  the  opinions 
which  are  to  be  gathered  from  learned  and  foreign  writers,  which  have  fixed 
and  setded  the  rules  and  laws  widch  are  liinding  on  die  assured  for  the  benefit 
of  the  assurers  in  respect  to  the  "sufficiency"  and  "goodness"  of  the  bottom 
upon  which  they  have  hazarded  dieir  risks,  and  shewn,  we  trust,  most  clearly, 
that  this  protection  of  the  underwriters  consists  almost  exclusively  in  the 
assumption  by  tlie  law,  tliat  in  every  instance,  where  die  assured  and  the 
underwriter  enter  into  the  contract  of  insurance  on  "ship,"  or  the  "goods  on 
board,"  for  it  comes  to  the  same  thinsr,  for  if  the  ship  be  not  "good"  and 
"sMlhcient,"  the  goods  insured  are  lost  by  its  defects,  that  in  every  instance, 
where  a  policy  of  insurance  is  made,  there  is  at  tliat  moment  (witliout  any 
expressed  agreement)  an  implied  warranty  on  the  part  of  the  assured  that  the 
ship  be  seaworthy,  "tight,  staunch  and  strong"  for  tlie  voyage  insured;  diat 
the  ship,  lii^ewise,  be  ])ro|)erly  (ujuipped  witli  sails  and  other  stores,  fit  for 
navigating  die  ship  for  tlie  voyagf!  in  question;  that  she  have  a  sufficient  crew, 

(a)   1  Burr,  347.  {h)  9  A.  &  E.  314. 


UPON    THE    BODY,  TACKLE,   ETC.   OF    THE    SHIP.  77 

and  a  irinstcr,  of  competent  skill,  to  navijrato  hor :  and  I  may  condude  now  this 
sul))ect  in  tlie  words  of  Mr.  J.  Laivrcncc,  wlio  says  "die  consideration  of  the 
insurance  is  paid,  in  ordcu-  Uiat  the  owner  of  a  ship  which  is  capahle  of  per- 
forming her  voyajre  may  he  indeninilied  against  certain  continj^encies  ;  and  it 
supposes  the  possibility  of  tlie  underwriter's  g-aininir  the  premium  :  but  if  the 
ship  be  incapal)le  of  pcrforiniuir  the  voyasre,  there  is  *no  possi-  r-  ^:,on  -i 
bihty  of  the  underwriter's  gaining  the  premium — and  if  the  con-  L  J 

sideration  fail,  tlu^  oblig-ation  fails."  At  the  s;ime  time  it  is  to  be  borne  in 
mind,  for  tlie  encouragement  and  satisfaction  of  the  assured,  that  all  the  law 
requires  of  them  is  to  perform  their  part  of  the  contract  strictly,  as  to  the 
implied  warranty,  which  they  have,  previous  to  die  voyage,  the  power  in  their 
own  hands  to  do,  if  they  choose  5  the  law  then  exempts  them  from  any  further 
responsibility,  whatever  may  happen,  because  there  was  a  bond  fuh  contract 
made  by  the  assured,  and  the  law  will  not  be  too  captious  in  the  event  of  loss, 
to  find  reasons  for  discharging  the  assurers  from  paying  to  the  insured  an 
indemnitv  for  their  loss. 

But  their  still  remains  a  furUier  subject  for  our  consideration  on  this  head  of 
"the  good  ship,  &c. ,"  witliout  which  it  would  not  he  possible  to  leave  it  in  a 
complete  state  of  illustration.     The  remaining  part  of  the  subject  relating  pecu- 
liarly to  the  "ship,"  to  which  I  allude,  is  that  which  treats  of  the  law  respect- 
ing the   "changing  of  the  ship,"  which   is  an  additional  duty  cast  upon  the 
assured,  which  has  not  yet  been  touched  upon.      It  was  stated  at  the  beginnino" 
of  this  section  diat  in  order  to  make  the  insurance  elTectual,  it  was  essential  that 
the  name  of  the  ship  should  be  stated  in  the  policy,  and  that  with  the  exception 
of  a  case  or  two  where  the  ship  had  iieen  named  by  mistake,  and  the  identity 
proved,  it  was  held  to  be  suihcient:  and  although  the  policy  contains  these 
words,  "or  by  what  other  name  or  names  the  ship  may  he  called,"  and  that 
ill  some  special  cases  insm-ances  have  been  held  to  he  good,  and  no  doubt  are 
when  made  upon  "ship  or  ships"  coming  from  and  expected  to  arrive  at  a 
certain  port.      This  being  so,  generally  speaking,  the  assured  cannot  substitute 
another  vessel  for  the  one  named  in  the  policy  at  the  time  of  making  the  insu- 
rance, for  the  underwriter  by  such  change  has  lost  the  advantage  of  ascertain- 
ing die  character  of  the  siiip  substituted  for  the  one  first  oflered  to  him,  to 
underwrite,  and  has  had  no  opportunity  to  exercise  his  judgment  respecting  it, 
as  well  as  the  premium  he  shall  expect  to  receive;  and  if  anodier  were  to  start 
on  the  voyage  *difierent  to  the  one  he  understood  to  be  the  subject  r-    ,.,  .„     -, 
of  the  insurance,  this  alters  in  toto  his  speculation  about  the  insu-  L      ^*^     J 
ranee,  and  consequently  he  will  not,  by  law,  be  bound  by  his  contract,  which 
is  now  invalid  :   inasmuch  it  relates  to  a  different  matter  to  which  he  had  agreed, 
because  die  contract  he  entered  into  with  the  assured  was  for  the  protection  of 
certain  "goods"  on  board  a  particular  ship,  or  on  "the  particular  ship  itself," 
and  it  is  clear  that  he  cannot,  in  case  of  a  loss  arising,  be  held  to  his  contract, 
wdiich  has  without  his  knowledge  or  consent  been  entirely  made  a  diilerent  one 
to  that  which  he  had  underwrote.     This  reasoning,  as  a  general  theory,  seems 
to  admit  of  no  doubt  whatever,  applying  as  it  is  supposed  I0  the  change  of  the 
vessel  l)efore  the  commencement  of  the  voyage.      But  whether  in  the  case  of 
a  transhipment  rendered  absolutely  necessary  in  the  course  of  the  voyage,  and 
made  by  the  master  in  due  and  proper  execution  of  his  duty,  the  underwriter 
shall  lie  considered  as  still  continuing  liable,  and  whether  likewise  for  extra 
expenses  attending  the  transhipment  as  an  increase  of  freight,  does  not  appear 
to  have  met  with  any  express  decision  by  the  Courts  in  this  country,  though 
by  the  reij;ulations  of  other  countries  the  question  appears  to  have  been  setded. 
It  is  certain  that  by  the  contract  between  the  shipowner  and  the  freighter,  the 
shipowner  (and  the  master  as  his  agent)  is  bound  to  carry  the  goods  to  their 
destination,  if  not  prevented  from  doing  so  in  his  own  ship,  by  some  event 


78  UPON  THE  BODY,  TACKLE,  ETC.  OF  THE  SHIP. 

which  he  has  not  occasioned,  and  over  whicli  he  has  no  control.  "The 
master,"  says  Lord  Tenterden^  in  his  book  on  Shipping,  {a)  "shoukl  always 
bear  in  mind,  tliat  it  is  his  duty  to  convey  the  cargo  to  the  place  of  destination. 
This  is  the  purpose  for  wliich  he  has  been  entrusted  Avidi  it,  and  this  purpose 
lie  is  bound  to  acconiplisli  by  every  reasonable  and  practicable  method."  Many 
bad  consequences,  no  doubt,  might  arise  from  relaxing  this  rule,  by  holding  out 
temptation  to  the  shipowner  or  master  to  make  unnecessary  transhipment  of 
r  ^14.1  1  S'oods,  whereby  the  goods  themselves  run  the  *risk  of  damage,  and 
L  J  the  policy  of  insurance  may  become  questioned.      But  Lord  Ben- 

raan,  in  a  recent  case  of  Skipton  v.  Thornton,  (a)  says,  "that  after  all.  these 
inconveniences  seem  to  point  to  a  vigilant  examination  of  every  case  of  tran- 
shipment to  see  that  its  necessity  is  well  established,  rather  than  to  decide  the 
present  question :  and  that  this  must  turn  upon  the  nature  of  the  contract  be- 
tween the  parties,  as  it  is  to  be  collected  from  our  own  books,  and  from  those 
foreign  laws  and  ordinances,  as  well  as  the  writings  of  jurists,  to  which  our 
Courts  have  long  been  accustomed  to  have  recourse  for  guidance  on  subjects  of 
this  nature." 

His  Lordship  then  observes,  "that  there  seems  to  be  much  disagreement  in 
foreign  ordinances  and  jurists  whether  or  no  the  master  is  bound  to  tranship,  or 
whether  having  contracted  only  to  carry  in  his  own  ship,  he  is  not  absolved 
from  further  prosecution  of  the  enterprize  by  the  vis  major  which  prevents  him 
from  accomplishing  it  in  the  literal  terms  of  his  undertaking." 

I  propose,  in  the  first  place,  to  refer  to  the  opinions  and  writings  of  learned 
jurists  upon  this  important  question,  and  to  some  of  the  ordinances  and  laws  of 
other  maritime  and  commercial  states. 

Malyne,  in  his  Lex  Mercatoria,  {b)  appears  to  be  of  opinion  that  the  assured 
may,  for  a  sufficient  reason,  shift  the  goods  from  one  ship  to  another,  so  as  to 
be  delivered  according  to  the  charter-party,  and  the  underwriter  will  continue 
liable,  for  he  says,  "It  sometimes  happens  that  upon  some  special  considera- 
tion, this  clause,  forbidding  the  transferring  of  goods  from  one  ship  to  another, 
is  inserted  in  policies  of  insurance,  because  in  time  of  hostility  or  war  between 
princes,  it  might  be  unladen  in  such  ships  of  contending  princes,  by  which  the 
adventure  would  be  increased.  But  according  to  the  usual  policies,  which  are 
made  generally  without  an  exception,  the  assurer  is  liable  thereunto :  for  it  is 
r  *149  "1  ^iritlfirstood  that  the  master  of  a  ship  would  not,  *without  some 
L  J  good  and  accidental  cause,  put  the  goods  from  one  ship  to  another, 

but  would  deliver  them  according  to  the  charter-party  at  the  appointed  place." 
The  late  Mr.  J.  Park  observes  upon  this  passage,  in  his  own  treatise,  («)  "that 
the  reason  given  by  Malyne  in  support  of  his  position,  is  by  no  means  satis- 
factory, nor  is  it  well  founded  in  point  of  experience  :  neither  has  he  adduced 
a  single  authority  to  corroborate  the  opinion  advanced.  Indeed,"  he  says,  "the 
whole  current  of  authority  turns  the  other  way,  at  least  as  far  as  I  have  been 
able  to  trace  it."  Molloy  has  said,  that  if  goods  are  insured  in  such  a  ship, 
and  afterwards  in  the  voyage  she  becomes  leaky  and  crazy,  and  the  supercargo 
and  the  master,  by  consent,  become  freighters  of  another  ship  for  the  safe 
delivery  of  the  goods,  and  then  after  she  is  loaded  the  second  vessel  miscarries, 
the  assurers  are  discharged.  It  is  true,  the  sentence  proceeds  thus:  "  If  these 
words  be  inserted,  namely,  the  goods  laden  to  be  transported  and  delivered  at 
such  a  place  by  the  said  ship,  or  by  any  other  ship  or  vessel  until  they  be  safely 
landed,  the  assurers  must  answer  for  the  misfortune." 

This  opinion  is  confirmed  by  foreign  writers.  Hoccus  writes,  "Merces  si 
eadem  naviiratione  transferantur  de  una,  navi  in  aliam,  et  si  novissime  navis  ubi 

(a)  Patrc  321,  6th  edit.  (a)  9  A.  «fe  E.  314. 

(6)  Mai.  Lex.  Merc.  118.  (a)   Park  Ins.  613. 


UPON  THE  BODY,  TACKLE,  ETC.  OF  THE  SHIP.  79 

merces  tranfussc  fueriint,  deperdater,  tunc  est  inspicienda  forma  assecuralionis, 
in  qua,  si  fuit  dictum,  quod  assecurator  merces  quae  sunt  in  tali  navis  tunc 
assecurator  non  tenetur,  eo  quod  mentionem  fecit  in  assecuralione  de  tali  navi. 
Et  ratio  est,  quia  non  par  est  ratio  assecurationis,  quando  merces  devehunter 
in  una  navi  et  quando  in  altera,  immo  solet  id  principalitcr  considerari  inter 
ipsos  assecuratores  cum  una  navis  sit  magis fortis  quam  alia.^''  (h) 

JRoccus  is  corroborated  by  several  foreign  writers  (c)  upon  this  branch  of 
jurisdiction,  which  seems  so  contrary  to  good  policy,  and  calculated  to  make 
the  master  and  crow  quit  the  vessel  and  let  her  be  lost,  the  consequence  of 
which  must  *invariably  fall  on  the  assurers  in  the  shape  of  a  total  ^  *i4'j  ~i 
loss.     And  we  shall  afterwards  see  that  a  clause  is  inserted  in  the  •-  -^ 

usual  policies,  that  the  assured,  their  factors,  servants,  or  assigns,  may  sue, 
labour,  and  travel  for,  in  and  about  the  defence,  safeguard,  and  recovery  of  the 
said  goods  and  ship,  &c.,  without  any  prejudice  to  the  insurance,  and  it  must 
be  clear,  in  cases  where  it  is  possible,  the  readiest  mode  to  save  the  property 
would  be  transferring  it  to  another  bottom,  to  the  charges  of  which,  the  clause 
goes  on  to  say,  they  (the  assurers)  undertake  to  contribute  each  in  proportion 
of  his  sum  insured  therein. 

But  it  appears  that  from  the  following  authorities,  in  case  of  necessity,  the 
master  is  at  liberty  to  tranship,  where  the  transhipment  can  only  be  made  at  a 
higher  rate  of  freight,  and  by  the  French  law  it  becomes  an  average  loss,  and 
in  the  case  of  insurance  must  be  borne  by  the  underwriters. 

By  the  Rhodian  law,  (rt)  the  laws  of  Oleron,  (b)  and  the  ordinances  of  Wis- 
buy^  (c)  the  master  was  at  liberty  but  not  bound  to  tranship. 

By  tlie  old  French  ordinances  the  master  was  obliged  to  do  so.  "En  cas 
que  le  vaisseau  ne  puisse  este  racommod^,  le  maistre  sera  oblige  d'en  louer 
incessammeint  un  autre."  id) 

Upon  these  ordinances  it  was  maintained,  however,  by  Pothier  (e)  and 
Valin,  {/)  that  it  was  imperative  upon  the  master  ;  Emerigon,  [g)  on  the 
other  hand,  insisted  that  the  duty  was  cast  upon  him  as  the  agent  of  the  freigh- 
ters :  and  the  same  view  is  adopted  by  the  modern  French  Code,  (/t) 

By  the  French  ordinances  (i)  and  the  Code  de  Commerce^  *and  p  *-\aa  -\ 
according  to  the  decisions  in  America,  the  shipowner  is  entitled  to  ^  -^ 

charge  the  cargo  with  the  increased  freight,  and  in  the  case  of  insurance  it  must 
be  made  good  by  the  assurers,  (a) 

And  Lord  Tenter  den,  in  his  book  on  Shipping,  (b)  adopts  this  principle,  and 
refers  to  the  ordinances  of  Antwerp  and  Rotterdam,  and  other  authorities,  and 
says,  "If  by  reason  of  the  damage  done  to  the  ship,  or  through  want  of  neces- 
sary materials,  she  cannot  be  repaired  at  all,  or  not  without  great  loss  of  time, 
the  master  is  at  liberty  to  procure  another  ship  to  transport  the  cargo  to  the 
place  of  its  destination."    The  question  in  the  case  of  Shipton  v.  Thornton,{c) 


(h)  Roccus  do  Assec.  No.  28. 

(c)  Santerna  de  Assecur.  n.  35.     Stracca  and  others,  n.  10. 

(a)  Pardessus  Collection  de  lois  Maritinies,  torn.  1,  p.  256,  c.  vi,  s.  42. 

(i)  Id.  torn.   1,  p.  325,  c.  viii.  art.  4.  (c)   Id.  torn.  I,  p.  472,  c.  xi,  art.  18. 

(r/)   liiv.  iii.  tit.  iii. 

(e)  CEuvres,  torn.  2,  p.  394,  ed.  2,  (1781.)     Contrats  de  Louages  Maritimes,  part  1, 
Charter-partie,  1,  s.  3,  art.  2,  93,  num.  68. 

(/)  Nouvcaii  Commentairc  sur  I'Ordinance  de  la  Marine,  lib.  iii.,  tit';  iii.,  (Du  Fret  ou 
Nolls,)  art.  ii.  (torn.  1,  p.  651,  ed.  1766.) 

(g)  Traite  des  Assurances,  torn,  i,  p.  423,  ed.  1827,  ch.  xii,  s.  16. 

(A)   liiv.  ii,  tit.  8.  (/)    Emer.  Traite  des  Assur.  c.  xii.  3.  16. 

(a)  Code  de  Commerce,  350;  and  Chancellor  Kent's  Comment,  3  Com.  212. 

(i)  Abb.  part  4,  c.  4,  p.  320,  6th  edit.  (c)  9  A.  «&  E.  314. 

Vol.  VII.-.G 


80  VPOS    THE    BODY,  TACKLi:,  ETC.   OF    THE    SHIP. 

to  which  I  have  alkided,  was  whether,  where  goods  shipped  under  a  bill  of 
ladino-  in  a  general  ship,  which  was  prevented  from  completing  the  voyage  h) 
consequence  of  damage  occasioned  by  tempest,  the  master  was  bound,  if  ho 
had  an  opportunity,  to  forward  the  goods  by  some  other  conveyance  to  their 
place  of  destination,  and  the  Court  of  Queen's  Bench  held  that  he  was,  at  any 
rate,  at  liberty  to  do  so  at  the  same  rate  of  freight ;  and  that  if  the  goods  arrived 
at  their  place  of  destination  by  such  other  conveyance,  the  shipowner  was 
entided,  on  the  freighter  receiving  the  goods,  to  the  whole  of  the  freight  origi- 
nally contracted  for,  although  by  the  second  conveyance  the  goods  were  carried 
at  a  lower  rate  of  freight."  The  reader  is  referred  to  the  very  elaborate  judg- 
ment delivered  by  liOrd  Chief  Justice  Denman^  in  which  the  opinions  of  the 
foreign  jurists,  and  the  laws  of  foreign  countries,  are  fully  laid  down  by  the 
Court  In  giving  judgment  on  this  case,  it  was  unnecessary  for  the  Court  to 
give  any  opinion  as  to  what  the  eftect  would  be  if  the  transhipment  could  have 
been  made  only  at  a  higher  rate  of  freight,  neither  did  it  pass  any  opinion  on 
the  effect  this  would  have  had  on  the  contract  of  insurance.  Lord  Denman 
savs,  "It  must  never  be  forgotten,  that  the  master  acts  in  a  double  capacity  : 
J-    ^  -,  as  agent  to  *the  owner,  as  to  the  ship  and  freight,  and  agent  to  the 

L  J  merchant  as  to  the  goods  ;  these  interests  may  sometimes  conflict 

with  each  other,  and  from  that  circumstance  may  have  arisen  the  difficulty  of 
defininor  the  master's  duty  under  all  circumstances,  in  any  but  very  general 
terms.  The  case  now  put  supposes  an  inability  to  complete  the  contract,  in 
its  original  terms,  in  another  bottom,  and  therefore  the  owner's  right  to  tranship 
will  be  at  an  end  :  but  still,  all  circumstances  considered,  it  may  l;e  gready  for 
the  benefit  of  the  freighter  that  the  goods  be  forwarded  to  tlieir  destination  even 
at  an  increased  rate  of  freight,  and  if  so,  it  will  be  the  duty  of  the  master  as 
his  agent-  to  do  so.  In  such,  the  freighter  will  be  bound  by  the  act  of  his  agent, 
and,  of  course,  for  the  increased  freight. " 

And  this,  according  to  the  French  ordinances,  and  the  rule  in  America 
would,  we  have  already  seen,  have  to  be  borne  by  the  underwriters  in  the  case 
of  an  insurance. 

Besides  this  case  of  Shipton  v.  Thornton,  which,  though  not  containing  a 
decision  on  the  subject  of  insurance,  may  throw  a  litUe  light  upon  it,  should 
such  a  case  of  insurance  arise  under  similar  circumstances,  and  at  any  rate  the 
authorities  quoted  by  the  Court  have  gone  a  long  way  to  negative  what  Mr.  J. 
Park  says  in  his  Treatise  on  Insurance ;  as  for  as  his  researches  had  gone, 
the  amount  of  authorities  leant  against  the  principle  and  policy  of  transhipment 
in  case  of  necessity:  (a)  there  are  two  other  cases  only  that  are  to  be  found  in  our 
books ;  and  the  first  is  the  case  of  Dick  v.  Barrclh  {b)  and  Mr.  J.  Park  again 
says  "this  case  is  not  expressly  in  point,  though  it  seems  to  decide  it."  {c)  It 
was  an  action  on  a  policy  of  insurance  whi(-h  Avas  tried  before  Lord  Chief  Jus- 
tice Lee,  at  (iuildhall.  The  plaintitV  had  insured  "interest  or  no  interest"  in 
any  ship  he  should  come  in  from  Virginia  to  London.  Beginning  the  adven- 
ture on  his  embarking  on  board  such  ship :  the  money  to  be  paid  though  his 
^  "1  p6r-''on  sliould  escape,  or  the  ship  be  retaken.      He  embarked  in 

L  J  the  *  Speedwell ;  but  she  springing  a  leak  at  sea,  he  went  on  board 

the  Friendship,  and  arrived  safe  in  London;  but  th(^  Speedwell  was  taken  after 
he  left  her.  And  now  in  this  action  against  the  unilerwriters,  the  latter  was  held 
liable :  for  the  insurance  is  on  the  ship  the  plaintilf  set  out  in.  and  had  dial  got 
safe  home,  and  the  other  been  lost,  he  could  not  have  recovered  upon  the  ground 
of  his  having  removed  his  person  into  that  ship  in  the  middle  of  the  voyage. 


(a)  Park  Ins.  613.  (*)  2  Strange,  1248. 

(c)  Park  In*;.  617. 


UPON  THE  BODY,  TACKLE,  ETC.  OF  THE  SHIP.  81 

The  next  case  is  that  of  Planlamoiir  v.  Staples^  (a)  which  is  quite  in  point, 
to  shew  that  where  a  transhipment  had  taken  place  into  a  second  ship,  the 
assured  were  held  entitled  to  recover  an  average  loss  when  the  second  ship  was 
afterwards  captured,  and  witii  all  her  cargo  since  condemned.  The  plaintiffs 
were  merchants  at  Geneva,  and  on  their  own  account  and  risk,  by  means  of 
their  agents  at  Marseilles,  were  interested  in  bullion,  and  goods,  and  merchan- 
dises shipped  there  on  board  the  ship  IJuras,  consigned  to  the  plaintiffs'  cor- 
respondents at  Pondicherry,  with  directions  to  barter  or  sell  the  same  on  their 
account,  and  to  make  the  returns  on  the  same  to  Europe  in  other  goods,  the 
produce  or  manufacture  of  India.  The  plaintiffs  were  also  interested  in  the 
said  ship  Duras.  The  ship  Duras  sailed  from  France  on  the  voyage  insured 
in  June,  1776;  and  in  the  outward  bound  voyage  was  by  bad  weather  totally 
lost  at  the  Isles  of  France,  in  April,  \in.  The  goods  on  board  sustained 
damage,  but  great  part  of  the  bullion,  and  a  considerable  part  of  the  goods 
were  saved,  and  without  any  authority  from  the  underwriters,  sent  forward  in 
another  ship  to  the  plaintiffs'  correspondents  at  Pondicherry,  who  received 
and  disposed  of  the  same,  and  under  the  plaintiffs'  orders  invested  the  produce 
in  other  goods,  the  produce  or  manufactory  of  India,  and  shipped  the  same  on 
the  plaintiffs'  account  on  board  a  ship  called  the  '•'•Pere  de  Famille,"  bound  to 
France.  The  Pere  de  Famille  sailed  from  Pondicherry  in  August,  1778, 
and  in  the  course  of  her  voyage,  was  *condemned  at  the  Isles  of  ^  ^aa-j  *i 
France,  as  unfit  to  proceed  to  Europe;  whereupon  the  plaintiffs'  L  J 

goods  were  put  on  board  another  ship,  called  the  '■^Louisa  Elizabeth,'^  bound 
for  France:  which  ship,  wiUi  the  plaintiffs'  goods  on  board,  sailed  for  France, 
and  was  afterwards  taken  by  an  English  privateer,  and  has  since,  with  all  her 
cargo,  been  condemned.  On  the  29th  August,  several  of  the  underwriters  on 
the  policy  signed  a  memorandum  thereon,  whereby  they  agreed  to  run  the  risk 
on  the  goods  saved  as  aforesaid,  in  any  other  "ship  or  ships,"  until  their  safe 
arrival  in  France:  but  which  agreement  the  defendant  and  several  others  of  the 
underwriters  refused  to  sign,  or  give  their  consent  to  it.  The  defendant  hath 
paid  the  whole  of  the  average  loss,  occasioned  by  the  loss  of  the  ship  Duras, 
and  by  the  damage  of  the  plaintiffs'  goods  then  on  board.  By  the  capture  of 
the  ship  Louisa  Elizabeth,  and  of  the  goods,  the  plaintiffs  sustained  a  loss  of 
12/.  2s.  9d.  per  cent,  on  the  sum  subscribed  on  the  said  policy,  which  has 
been  paid  by  all  the  underwriters  who  signed  the  memorandum  of  29th  August, 
1778.  The  question  for  the  opinion  of  the  Court  was,  whether  the  defendant 
was  to  pay  the  said  loss  of  12/.  2s.  9rf.  per  cent,  which  the  plaintiffs  had  so 
sustained  by  the  capture  and  condemnation  of  the  ship  Louisa  Elizabeth  and 
her  cargo:  or  if  not,  are  they  entitled  to  any,  and  what  return  of  premium? 
Lord  Mansjield — "  There  is  not  a  particle  of  doubt.  The  only  question  is, 
whether  die  shipping  to  Europe  was  necessary  to  the  salvage.  It  is  admitted 
that  the  defendant  is  liable  upon  the  voyage  to  Pondicherry,  though  the  goods 
were  conveyed  in  another  ship :  therefore  that  circumstance  makes  no  differ- 
ence. The  sale  of  the  cargo  is  also  admitted  to  be  necessary.  Then  how 
were  the  proceeds  to  be  admitted  to  Europe?  What  was  the  best  way  of  get- 
ting home  the  money  for  the  benefit  of  the  assured  and  assurers  .^  Beyond  all 
doubt  the  best  way  was  to  invest  it  in  other  goods.  Therefore,  that  being  done 
which  was  the  best  to  be  done,  the  underwriters  are  liable."  Butler,  J. — 
''There  is  no  case  which  expressly  decides  that  the  captain  may  ^    ^.  -, 

invest  the  ^produce  of  the  goods  saved."     But  in  the  case  of  Mills  L  J 

v.  Fletcher,  [b)  it  was  decided,  that  the  captain  has  a  general  power,  and  is 
bound,  in  duty,  to  do  the  best  for  all  concerned.     Postea  to  the  plaintiffs. 

(fl)  M.  22  Geo.  3,  B.  R.  1  T.  R.  611,  note  (a),  3  Doug.  1. 
(6)  Doug.  231. 


82  BEGINNING   THE    ADVENTURE,  ETC. 

I  may  venture  to  make  an  observation,  with  respect  to  this  case,  and  the 
previous  one  of  ^^  Shipton  v.  Thornton^''''  in  which  Lord  Denman  says,  "the 
captain  is  agent  for  the  owners  of  the  goods,  as  well  as  of  the  owner  of  the 
ship  in  respect  to  ship  and  freight,  and  therefore  it  woukl  appear  probable  that 
had  there  been  a  question  in  the  latter  case  respecting  an  assurance,  after  a  loss 
had  happened  of  the  second  ship,  and  of  the  goods  into  which  they  had  been 
transhipped,  in  the  same  manner  as  in  the  case  of  Plantamour  v.  Staples,  the 
underwriters  would  be  liable,  on  the  principle  'that  the  master's  duty  called 
upon  him  to  do  every  thing  that  was  the  best  for  all  concerned.'  " 


SECTION  VI. 

BEGINNING    THE    ADVENTURE    UPON   THE    SAID    GOODS,   ETC. 

The  head  of  this  sixdi  section  includes  that  portion  of  the  policy  which 
.states  the  time  at  which  the  risk  commences  both  on  the  said  "ship,"  and  the 
said  "goods"  laden  on  board,  and  when  they  end,  viz  :  "  Beginning  the  adven- 
ture upon  the  'said  goods  and  merchandises,'  from  the  loading  thereof  aboard 
the  said  ship,  at  ,  upon  the  said  ship,  &c.  ,  and  so  shall  continue 

and  endure  during  her  abode  there  upon  the  said  ship,  &c.  And  further,  until 
the  said  ship,  with  all  her  ordnance,  tackle,  apparel,  &c.,  and  goods  and  mer- 
chandises whatsoever,  shall  arrive  at  ,  upon  the  said  ship,  &c.,  until  she 
hath  moored  at  anchor  in  good  safety,  and  upon  the  goods  and  merchandises, 
until  the  same  be  there  discharged  and  safely  landed." 

r  *14Q  "1  ^^  most  of  the  commercial  countries  abroad  it  is  'particularly 
L  -^  expressed,  either  in  their  ordinances  or  in  the  policies,  "that  the 

risk  of  the  assurers  shall  commence  the  moment  the  goods  quit  the  shore," 
and  the  assurers  not  only  run  the  risk  in  the  ship  named  in  the  policy,  but  also 
in  the  boats  and  lighters  that  shall  be  employed  in  carrying  the  goods  on  board. 
The  custom  is  said  to  be  different  in  this  country :  for  the  Ens^Ush  policies 
expressly  declare  that  the  adventure  shall  begin  upon  the  goods  "from  the  load- 
ing thereof  on  board  the  said  ship."  This  is  the  usual  form  in  the  printed 
policies  used  by  private  underwriters ;  but  every  underwriter,  if  he  chooses, 
may  take  upon  himself  the  risk  of  the  goods  from  the  shore  to  the  ship.  I 
believe  that  it  is  not  at  all  rare,  with  respect  to  companies,  and  in  cases  of  voy- 
ages to  the  East  Indies  or  China,  where  there  is  difficulty  in  putting  valuable 
goods  on  board  safely.  I  have  met  with,  in  declarations  on  policies,  many 
instances,  and  I  have  no  doubt  on  the  practice ;  but  it  all  depends  upon  the 
words  used  whether  the  risk  to  the  ship  is  to  be  as  well  as  from  the  ship. 

There  is  a  very  recent  instance  of  this  in  the  case  of  Sutherland  v.  Pratt,  {a) 
(which  has  been  referred  to  often,  [b) )  which  was  an  insurance  made  by  the 
plaintiff  with  the  General  Maritime  Jissurance  Company,  "at  and  from 
Bombay  to  London,  with  leave  to  call  at  all  ports  and  places,  on  either  side 
and  at  the  Cape  of  Good  Hope,  including  the  risk  of  craft  to  and  from  the 
vessel,  upon  any  kind  of  goods,"  &c. 

I  will  mention  another  instance  in  the  important  case  of  lioi/x  v.  Salvador ; 
the  declaration  is  at  length  reported  in  Mr.  Scott's  Reports,  (c)     "The  case 

(a)   1 1  M.  &  W.  297.  (h)  Ante,  pp.  12,  33. 

(c)  4  Scott,  1. 


BEGINNING    THE    ADVENTURE,  ETC.  83 

(upon  the  writ  of  error  from  the  Common  Pleas)  stated  that  the  action  was  on 
an  insurance  on  goods,  per  the  General  La  Fayette,  and  other  'ship  or  ships,' 
at  and  from,  among  other  ports  or  phices  in  the  Pacific  Ocean,  Valparaiso,  to 
any  port  or  ports  in  France  and  the  United  Kingdom  of  Great  Britain,  with 
leave  to  touch  and  trade  at  any  place  in  America,  or  anywhere  else,  to  make 
all  transhipments,  and  including  the  *risk  of  craft  to  and  from  the  r-  ^,  _„  -. 
vessel  or  vessels."     And  I  have  little  doubt  that  in  this  country  the  L  J 

insertion  of  this  clause  by  the  assurers,  in  the  case  of  companies  is  not  at  all 
rare.  At  all  events,  with  regard  to  the  conclusion,  it  appears  in  all  cases  to 
preserve  the  same  form,  viz:  "and  shall  continue  till  the  goods  are  safely 
landed."  And  so,  where  ships  cannot  come  close  to  the  quay  to  unload,  the 
underwriters  are  liable  for  the  risk  of  the  goods  being  carried  in  boats  to  the 
shore.     The  risk  upon  the  body  of  the  ship  is  "at  and  from,  &;c.  , 

upon  the  said  ship,  and  so  shall  continue  and  endure  until  the  said  ship  shall 
arrive  at,  &c.,  ,  and  hath  there  moored  at  anchor  twenty-four 

hours  in  good  safety."  (a) 

When  tlie  insurance  is  made,  indeed,  on  the  homeward  voyage,  the  begin- 
ning of  the  adventure  is  sometimes  stated  to  be  "immediately  from  and  after 
her  arrival  at  the  port  abroad;"  at  other  times,  "from  the  departure;"  and,  in 
short,  it  depends  entirely  upon  the  inclinations  of  the  assured  expressed  in  the 
contract. 

And  when  the  words  "at  and  from"  a  given  place  are  used  in  a  policy  of 
insurance,  the  risk  is  always  understood  to  commence  from  the  time  of  the 
ship's  first  arrival  at  that  place.  And  in  an  action  upon  an  insurance  before 
Lord  C.  J.  HarduHcke,  it  was  held  that  the  words  "at  and  from  Bengal  to 
JEngland,"  meant  the  ship's  first  arrival  at  Bengal;  and  it  was  agreed  that, 
when  such  words  are  used  in  policies,  first  arrival  is  always  implied  and 
understood :  (6)  and  the  commencement  of  the  voyage  is  sailing  from  port,  (c) 

The  Jirst  class  of  cases  to  which  I  shall  refer  on  this  "head"  are  those 
upon  which  the  Court  have  put  a  construction  upon  the  attaching  of  the  policy, 
and  of  the  commencement  and  duration  of  the  risk. 

The  first  case  to  be  mentioned  is  an  anonymous  one,  (d)  in  the  reign  of 
James  the  Second,  but  is  from  a  reporter  of  *very  good  authority.  ^  ^,  p.,  -■ 
A  policy  of  insurance  shall  be  construed  to  run  until  the  ship  shall  ^  J 

have  ended,  and  be  discharged  of  her  voyage;  for  her  arrival  at  the  port  to 
which  she  was  bound  is  not  a  discharge,  till  she  is  unloaded.  And  it  was  so 
adjudged  by  the  whole  Court,  upon  a  demurrer. 

This  decision  may  be  very  proper  in  a  case  so  general  as  this,  but  in  all 
instances  where  the  usual  clause  is  adopted,  "and  till  the  ship  shall  have 
moored  at  anchor  in  good  safety,"  the  underwriter  on  the  "ship"  would  con- 
tinue liable  for  accidents  at  the  port  no  longer  than  "the  twenty-four  hours." 
With  respect  to  the  continuation  of  the  risk  upon  the  goods,  which  the  under- 
writers undertake  to  be  answerable  for  till  the  said  goods  be  safely  landed,  by 
many  foreign  ordinances  the  number  of  days  in  which  the  assured  are  to  unload 
their  goods  is  stipulated ;  but  in  this  country  there  is  no  such  stipulation  :  the 
owners  of  the  goods  being  left  to  take  them  away  at  their  discretion,  so  long  as 
there  is  no  unreasonable  delay ;  sonie  cargoes,  no  doubt,  will  take  more  time 
to  unload  than  others. 

In  the  case  of  Noble  v.  Kcnnoway,  (a)  where  goods  insured  to  the  coast  of 
Labrador,  "till  safely  landed,"  they  were  kept  on  board  a  long  time  after  the 

(a)   1  Magens,  47.  (6)   1  Atk.  548. 

(c)  Graham  v.  Barras,  5  B.  &  Ad.  1011.     (d)  Skinner,  243. 
(a)  Doug.  510. 


84  BEGINNING   THE    ADVENTURE,   ETC. 

ship's  arrival — this  being  the  "usage"  of  the  trade  at  that  place — the  risk  con- 
tinued. 

It  has  been  observed  above,  that  where  the  ship  cannot  come  near  the  quay 
in  order  to  unload,  in  such  cases  the  underwriters  must  continue  liable  for  the 
risk  of  carrying  the  goods  in  boats  to  the  shore.  But  in  a  case  of  Sparrow  v. 
Carruthers^  (b)  where  the  owner  of  the  goods  brouglit  down  his  own  lighter, 
and  received  the  goods  out  of  the  ship,  and  before  they  reached  land  an  acci- 
dent happened,  whereby  the  goods  were  damaged,  a  special  jury  of  merchants, 
under  the  direction  of  Lord  Chief  Justice  Lee,  found  that  the  underwriters  were 
discharged,  although  the  insurance  was  upon  "goods  to  London,  and  till  the 
same  shall  be  safely  landed  there." 

r  *152  1  *But  when  there  is  an  "usage,"  in  a  particular  trade,  to  take 
'-  -^  the  goods  on  shore  in  public  lighters,  the  underwriters  were  held 

liable  for  an  accident  which  happened  to  the  goods  on  board  the  lighter.  This 
was  the  decision  in  the  case  of  Hurry  and  others  v.  Royal  Exchange  Com- 
pany, (a)  And  in  the  case  of  Stewart  v.  Bell,  (b)  where  the  goods  insured 
were  destined  to  a  particular  place  in  an  island,  and  the  usual  course  was  for 
the  ship  to  proceed  to  an  adjoining  port,  and  there  tranship  the  goods  into  the 
shallops,  but  no  information  was  given  of  this  circumstance  to  the  underwriters, 
it  was  held  that  they  were  liable  for  a  loss  which  happened  to  the  goods  after 
they  had  been  put  on  board  the  shallops.  And  in  the  case,  also,  of  Mathie  v. 
Potts,  (c)  which  was  an  insurance  of  goods  on  board,  from  Nassau  to  Ca7n- 
peachy  and  back,  "till  discharged  and  safely  landed."  the  ship  having  sailed 
to  Campeachy,  and  having  arrived  off  that  port,  made  signals  for  launches  to 
come  out,  into  which  the  goods  were  put  for  the  purpose  of  being  run  ashore: 
the  Court  thought  the  goods  were  protected  by  the  policy,  while  on  board  the 
launches,  such  being  the  "usual"  method  of  carrving  on  that  trade. 

But  where  in  the  case  of  Strong  v.  NataUy,  [d)  goods  had  been  put  on 
board  a  lighter  in  the  usual  way,  and  brought  to  a  wharf  belonging  to  the  plain- 
tiff in  the  afternoon,  but  in  consequence  of  the  roughness  of  the  weather  could 
not  be  landed  that  evening;  the  lighterman,  finding  he  could  not  land  the  goods, 
asked  the  plaintiff  whether  he  should  stay  to  see  the  carijo  landed.  The  plain- 
tiff said  he  need  not  do  so,  for  he  would  see  to  the  landing  himself.  Accord- 
ingly the  lighterman  left  the  cargo  alongside  the  wharf.  In  the  course  of  the 
night,  tlie  lighter  was  sunk,  by  unavoidable  accident,  and  the  goods  were  lost. 
The  Court  held  that  "the  underwriters  were  discharged,  the  plaintiff  having 
r  *l'iS  1  taken  the  goods  into  his  own  possession  before  they  were  landed, 
L  J  *having  the  complete  control  over  them,  and  renounced  all  benefit 

under  the  policy." 

When  the  policy  is  on  "the  ship,"  I  have  observed,  {a)  with  the  usual 
clause,  "till  the  ship  shall  have  moored  at  anchor  twenty-four  hours  in  good 
safety,"  the  underwriters  will  not  be  liable  for  any  loss  which  takes  place  after 
the  expiration  of  the  twenty-four  hours.  This  principle  of  law,  was  settled 
by  a  case  of  Jjockyer  and  others  v.  Offley,  (b)  which  was  an  action  on  a  policy 
of  insurance  on  "ihi;  sliip  IIo]ie,  from  Hamlnirgh  to  L^ondon.^^  At  the  trial 
before  Mr.  .1.  Buller,  at  Guildhall,  the  verdict  was  found  for  the  plaintiff, 
subject  to  the  opinion  of  the  Court  upon^  the  following  case:  "that  the  plain- 
tiffs were  interested  in  the  ship  to  the  amount  of  the  sum  insured,  that  the 
master  had  in  the  course  of  the  voyage  committed  barratry  by  smuggling  on 


(i)  2  Strange,  1236.  (a)  2  B.  &  P.  430. 

(f>)  5  B.  &  A.  238.  (c)  3  B.  &  P.  23. 

((J)   1  N.  K.  16.  (a)  Ante,  p.  151. 
(i)   1  T.  R.  252. 


BEGINNING    THE    ADV-ENTURE,   ETC.  85 

hiti  own  account,  by  hovering  and  riinnin<r  brandy  on  shore  in  casks  under 
sixty  gallons:  that  on  the  1st  September,  1785,  the  ship  arrived  in  safety  at 
her  moorings  in  the  river  Thames,  and  remained  there  in  safety  till  the  27th 
of  the  said  month  of  September,  when  she  was  seized  by  the  revenue  officers, 
for  the  smuggling  before  stated :  about  three  weeks  after  the  seizure,  the  plain- 
tiffs informed  the  underwriters  thereof;  and  that  they  would  hold  them  liable 
on  the  policy :  that  on  the  20th  October,  the  plaintiffs  presented  a  petition  to 
the  commissioners  of  his  Majesty's  Customs,  in  which  the  whole  blame  (which 
was  the  truth)  attached  to  the  captain,  and  praying  that  their  vessel  might  be 
restored  on  paying  something  to  the  seizing  officer.  The  answer  was  "that 
the  prosecution  must  proceed,  as  the  ship  had  been  guilty  of  a  gross  viola- 
tion of  the  laws,  but  the  owners  should  be  at  liberty  to  compound  accord- 
ing to  the  rules  of  the  Exchequer:'^  that  the  ship  was  appraised  at  the  sum  of 
330/.,  and  by  the  course  of  the  Court  oi  Exchequer  the  ship  would  have  been 
restored  to  the  plaintiffs  upon  payment  of  230/.,  besides  costs  and  charges, 
which  would  altogether  have  amounted  to  329/.  9s.  Id.  :  that  in  p  *i54  n 
November,  a  notice  was  indorsed  on  the  policy,  binding  the  under-  L  -• 

writers  for  all  costs  and  charges  about  the  recovery  of  the  ship :  that  this  was 
shown  to  the  underwriters  who  refused  to  subscribe  it.  This  case  was  fully 
argued  in  the  absence  of  Lord  Mansfield,  and  the  Court  having  taken  time  to 
consider  it,  Mr.  J.  HWes  pronounced  their  unanimous  opinion,  *'  the  general 
question  here  is,  whether  as  the  loss,  which  was  occasioned  by  the  barratry  of 
the  master,  did  not  happen  during  the  continuance  of  the  voyage,  the  under- 
writers are  liable }  I  must  own  this  appears  to  me  a  novel  case,  and  not  to 
have  been  decided  by  any  former  determinations.  Difficulties  occur  on  both 
sides  in  laying  down  any  rule.  The  first  thing  to  be  observed  is,  that  the 
policy  by  the  terms  of  it,  is  an  undertaking  for  a  limited  time,  during  the 
voyage  from  Hamburgh  to  London,  till  the  ship  has  moored  twenty-four 
hours  in  safety,  and  the  ship  was  not  actually  seized  till  nearly  a  month  after- 
wards. But  it  has  been  said,  that  under  the  24th  Geo.  3,  c.  47,  and  the 
Excise  laws,  that  the  forfeiture  attaches  the  moment  the  act  is  done,  and  that 
the  barratry  was  committed  during  the  voyage.  It  may  be  so  as  to  some  pur- 
poses, as  to  prevent  alterations  or  incumbrances;  but  I  tbink  the  actual  property 
is  not  altered  till  af\er  the  seizure,  though  it  may  be  before  condemnation.  I 
will  put  this  case  :  suppose,  before  the  seizure  of  the  ship  she  had  gone  another 
voyage,  and  on  her  return  had  been  seized,  would  the  crown  have  been  entitled 
to  an  account  of  her  earnings  after  deducting  the  expenses  of  the  outfit?  Surely 
not.  Till  the  seizure,  it  was  not  certain  that  the  officers  of  the  Crown  knew 
of  the  illicit  trade  of  the  master,  or  whether  they  would  take  advantage  of  the 
forfeiture.  It  would  be  a  dangerous  doctrine  to  lay  down,  that  the  underwriters 
should,  in  all  cases,  be  liable  to  remote  consequential  damages.  This  has 
been  compared  to  &  death's  wound,  which  subjected  the  ship  to  a  subsequent 
loss.  To  this,  the  case  of  Meretony  v.  Dunlop  (a)  seems  very  material :  that 
*was  *'an  insurance  on  a  ship  for  six  months,"  and  three  days  p  si^^  ~| 
before  the  expiration  of  the  time  she  received  her  death's  wound,  L  -• 

but  by  pumping  was  kept  afloat  till  three  days  after  the  time ;  there,  the  ver- 
dict, under  the  direction  of  Lord  Mansfield,  was  given  for  the  underwriter, 
and  that  verdict  was  afterwards  confirmed  by  the  Court.  I  will  put  another 
case :  suppose  an  insurance  upon  a  man's  life  for  a  year,  and  a  short  time 
before  the  expiration  of  the  year,  he  receives  a  mortal  wound,  of  wliich  he 
dies  after  the  year,  the  insurer  would  not  be  liable.  It  was  also  argued  that 
this  ship,  even  in  the  hands  of  a  fair  purchaser,  would  be  liable  to  the  forfei- 


(a)  Easter,  23  Geo.  3,  B.  R. 


86  BEGINNING   THE    ADVENTURE,  ETC. 

ture.  I  do  not  know  that  it  has  ever  been  so  decided ;  it  may  depend  upon 
circumstances,  such  as  length  of  possession,  laches  in  seizing,  or  other  matters. 
But  suppose  the  law  to  be  so,  it  does  not  follow  from  thence,  that  though  the 
ship  is  always  liable  to  confiscation,  that  the  underwriter,  at  any  distance  of 
time,  is  answerable  for  the  loss  under  a  limited  undertaking.  And  this  brings 
one  to  that  part  of  the  case  which  weighs  most  with  the  Court  in  favour  of 
the  defendant,  and  to  which  it  does  not  think  that  any  satisfactory  answer  has 
been  given.  It  was  agreed  in  the  argument,  that  the  Custom-house  officers 
might  seize  for  the  forfeiture  within  three  years  after  the  fact  committed ;  and 
the  Attorney  General  might  file  an  information  at  any  time  while  the  ship  was 
in  being.  Is  the  underwriter  during  all  this  time  to  continue  liable  ?  Suppose 
the  ship  had  gone  several  voyages  afterwards ;  and  suppose  a  partial  loss  paid, 
and  the  underwriter's  name  struck  off,  shall  an  action  be  afterwards  brought 
upon  the  policy }  His  accounts  could  never  be  settled,  nor  could  be  finally 
discharged,  whilst  the  ship  was  in  existence :  such  a  position  would  be  mon- 
strous, and  attended  with  infinite  inconvenience.  There  must  be  some  limita- 
tion in  reason,  in  point  of  time  laid  down  by  the  Court,  when  the  underwriter 
shall  be  released  from  his  engagement.  If  he  be  liable  for  a  month,  he  is  for 
a  year,  and  so  on.  We  all  think  that  the  law  of  insurances  would  be  left  mi- 
r  *1  'ifi  1  ^^^'^^^^'  ^"*^  ^^  much  confusion,  if  any  other  time  than  ^prescribed 
L  -^  by  the  policy,  namely,  the  continuance  of  the  voyage,  and  the 

mooring  twenty-four  hours  in  safety." 

Judgment  for  the  defendant. 

In  the  case  of  Shaw  v.  Felton,  («)  which  was  an  action  on  a  policy  of  insu- 
rance "on  the  ship  Indian,  and  goods,  at  and  from  Liverpool  to  the  coast  of 
.Africa,  during  her  stay  and  trade  there,  and  from  thence  to  the  port  or  ports 
of  discharge,  sale,  and  final  destination  in  the  West  Indies  and  America,  and 
until  she  was  moored  twenty-four  hours  in  safety."  She  arrived  on  the  coast 
of  Jlfrica,  took  in  a  cargo  of  slaves,  and  proceeded  to  Demerara.  In  the 
course  of  her  voyage,  and  in  calm  weather,  she  met  with  a  violent  concussion, 
resembling  an  earthquake,  from  which  she  received  so  much  damage  that  it  was 
with  the  greatest  difficulty  that  she  could  be  kept  afloat  by  pumping,  till  she 
reached  Demerara,  almost  a  wreck,  when  she  was  obliged  to  be  lashed  to  a 
hulk  to  prevent  her  sinking,  and  in  attempting  to  remove  her  from  thence  to 
the  shore  a  few  days  afterwards,  she  sunk,  though  the  distance  was  only  fifty 
yards.  The  plaintiff  gave  notice  of  abandonment  to  the  underwriters,  and 
recovered  as  for  a  total  loss  of  the  ship.  On  the  rule  for  a  new  trial,  Lord 
Kenyon,  C.  J.,  said, — "The  jury  had  no  doubt  but  the  ship  was  seaworthy 
when  she  sailed,  and  that  there  was  a  total  loss :  for,  although  she  arrived 
at  Demerara,  she  never  was  moored  twenty-four  hours  in  safety.  She  came 
there  a  perfect  wreck,  having  received  her  death's  wound  at  sea,  and  was 
with  the  greatest  difficulty  kept  afloat  till  all  the  people  were  landed."  The 
distinction  between  this  case  and  the  preceding  seems  to  be  this,  that  although 
both  ships  may  be  said  equally  to  have  received  their  death  wound  at  sea,  in 
the  latter  case  the  loss  was  at  once  appreciable  upon  her  immediate  arrival,  so 
as  to  prevent  her  even  being  said  to  be  moored  in  safety,  while,  in  the  former 
case,  the  consequences  which  made  the  loss  were  very  remote,  and  were  not 
ascertained  at  her  arrival. 

r  *ir7  -)  *Iri  th(!  case  of  Waples  v.  Eames,  (b)  the  ship  Success  was 
L  "^  J  insured  "at  and  from  Leghorn  to  the  port  of  London,  and  till 
there  moored  twenty-four  hours  in  good  safety."  She  arrived  the  8th  of  July 
at  Fresh  Wharf,  and  moored,  but  was  the  same  day  ordered  back  to  the  Hope 


(a)  2  East,  108.  (6)  2  Strange,  1243. 


BEGINNING    THE    ADVENTURE,  ETC.  87 

to  perform  a  fourteen  days'  quarantine.  The  men  upon  tliis  deserted  her,  and 
on  the  12th  tlie  captahi  applied  to  be  excused  going,  which  petition  was  ad- 
journed to  the  28tli,  when  tlie  regency  ordered  her  back  :  and  on  the  13th  she 
went  back,  performed  the  quarantine,  and  then  sent  up  for  orders  to  air  the 
goods  ;  but  before  she  returned,  the  ship  was  burnt  on  the  23rd  August,  and 
now  the  question  was,  whetlier  the  underwriters  were  liable .''  Lord  Chief 
.Justice  Lee  decided,  that  thougli  the  ship  was  so  long  at  her  moorings,  yet  she 
could  not  be  said  to  be  there  in  good  safety,  which  must  mean  the  opportunity 
of  unloading  and  discharging ;  whereas  here  she  was  arrested  within  twenty- 
four  hours,  and  the  hands  having  deserted,  and  the  regency  having  taken  time 
to  consider  the  petition,  there  was  no  fault  in  the  master  or  owners  j  and  it  was 
proved,  that  till  the  fourteen  days  were  expiied  no  application  could  be  made 
to  air  the  goods,  whereupon  the  jury  found  for  the  plaintiff. 

So  in  the  case  of  M'mett  v.  jJnderson,  (/;)  where  the  ship  Hercules  was 
insured  "from  BUboa  to  Rouen,  and  till  twenty-four  hours  moored  in  safety 
there;"  the  ship  arrived,  an  embargo  having  been  previously  laid  on  all  English 
vessels  in  that  port.  The  captain  went  on  shore  the  day  he  arrived,  and  the 
next  day  the  embargo  was  hiid  on  his  ship.  He  was  afterwards  permitted  to 
land  his  goods,  which  he  delivered  to  his  consignees,  but  the  ship  was  detained 
as  a  prize,  and  the  captain  and  crew  allowed  subsistence  as  prisoners  of  war 
from  the  time  of  their  arrival.  Lord  Kenyan:  "She  was  as  much  within  the 
power  of  the  enemy,  as  if  a  guard  had  been  put  on  board  the  moment  she 
arrived.  She  could  not  be  said  to  be  twenty-four  hours  or  a  minute  moored  in 
safety,  so  far  as  relates  to  these  plaintiffs,  for  immediately  on  her  r-  ^;.tcq  -i 
*entering  the  port,  she  was,  to  all  intents  and  purposes,  captured  L  J 

by  the  French."     Verdict  for  the  plaintifl's. 

So  in  the  case  o{  Horneyer  v.  Liishington,  (a)  immediately  upon  the  arrival 
of  the  ship  at  liiga,  her  papers  were  taken  and  hatches  sealed  down,  by  order 
of  the  government,  till  her  papers  could  be  sent  to  St.  Pclersburgh  to  be  ex- 
amined, after  which  the  ship,  &c.,  were  condemned  for  carrying  simulated 
papers  :  the  Court  held  this  vessel  could  not  be  said  "to  be  moored  in  good 
safety,"  and  the  underwriters  w^ould  have  been  liable  ;  but  as  the  assured  carried 
simulated  papers  without  leave,  the  assured  could  not  recover. 

But  in  the  case  of  Angerstein  v.  Bell,  (6)  where  a  ship  had  arrived  at  the 
wharf  where  she  intended  to  unload,  on  the  12th  January.,  and  was  laid  on  the 
outside  of  the  tier,  there  being  no  room  to  lay  her  in  the  inside,  where  the  sails 
were  unbent,  topmasts  struck,  three  anchors  out,  and  was  also  lashed  to  another 
ship,  and  so  continued  till  the  19th,  when  ships  and  a  quantity  of  ice  drove 
athwart  her  stern,  forced  her  adrift,  and  she  was  wholly  lost.  Lord  Kenyon 
was  of  opinion,  that  she  was  completely  moored  on  the  12th,  and  as  the  acci- 
dent did  not  happen  till  above  twenty-four  hours  after  that  time,  the  plaintifT 
was  nonsuited. 

So,  in  the  case  of  Samuel  v.  Royal  Exchange  Company,  (c)  where  an  in- 
surance was  made  on  a  ship  from  Sierra  Leone  to  J^ondon,  "  to  begin  at  Sierra 
I^eone  and  endure  upon  the  ship  until  she  shall  have  arrived  in  London,  and 
hath  there  moored  at  anchor  twenty-four  hours  in  good  safety,  and  upon  the 
'goods'  until  the  same  be  there  discharged  and  safely  landed,"  the  ship  arrived 
in  the  evening  of  the  18th  February,  and  the  captain  having  orders  to  take  her 
into  the  King's  Dock,  at  Beptford,  moored  her  near  the  dock  gates.  On  the 
following  morning  he  was  informed  at  the  dock  that  no  order  for  his  admittance 
had  been  received,  but  that  if  it  had,  the  vessel  could  not  enter  the  dock  on 

(b)  Peake,  211.  (a)   15  East,  46. 
(6)  Sit.  at  Guild,  after  'i'rin.  Term,  Park  Ins.  54. 

(c)  8  B.  &  C.  1 19. 


88  BEGINNING    THE    ADVENTURE,   ETC. 

P  ^.  _Q  -]  account  of  the  ice.  ■The  order  was  sent  by  tlie  Navy  Board  on 
L  -'  the  21st,  but  on  account  of  the  ice,  the  ship  could  not  be  moved 

till  the  27th,  and  then  in  warping  her  towards  the  dock,  a  rope  broke,  she 
grounded,  and  was  totally  lost.  The  jury  found  that  the  vessel  remained  at 
her  moorings  from  the  IStli  February  to  the  27th,  on  account  of  the  ice,  and 
not  for  want  of  an  order  to  enter  the  dock  :  it  was  held  that  the  plaintiff  was 
entided  to  recover,  for  that  the  place  where  the  vessel  was  moored  was  not  the 
place  of  her  ultimate  destination,  the  policy  did  not  expire  when  she  had  been 
there  twenty-four  hours  in  safety  :  and  as  the  vessel  remained  at  these  moorings 
on  account  of  the  ice,  and  not  waiting  for  the  order,  the  underwriters  were  not 
discharged  by  the  delay. 

When  a  policy  is  upon  freight  "'at  and  from  a  given  place,"  the  time  at  which 
the  policy  attaches  seems  to  be  regulated  by  the  following  principles.  Generally 
speaking,  the  risk  commences  from  the  time  the  goods  are  put  on  board  :  and 
unless  there  be  a  contract  for  the  shipment,  or  a  charter  of  affreightment,  the 
assured  can  only  recover  in  respect  of  the  freight  of  those  goods  which  are  on 
board  at  the  time  of  the  loss,  both  in  the  case  of  an  open  and  valued  policy  ,; 
though  in  the  case  of  Mont gomcry  v.  Eggington  {a)  which  was  the  case  of  a 
valued  policy,  and  a  portion  only  of  the  goods  were  on  board,  but  the  remain- 
der ready  on  the  quay,  the  assured  recovered  for  the  whole  value  in  the  policy. 
In  Curling  v.  Long,  (b)  Eyre,  C.  J.,  says,  "The  inception  of  freight  isbreak- 
inof  ground.  In  the  law  of  insurance,  indeed,  this  doctrine  is  not  holden  so 
strict,  for  there,  if  the  goods  be  so  situated  as  to  create  a  well  grounded  expec- 
tation of  freight  being  raised,  it  is  decided  that  the  freight  is  insurable  and 
recoverable."  The  principle  which  appears  to  be  deducible  from  the  authori- 
ties on  this  subject,  to  enable  the  assured  to  recover  on  a  policy  on  freight,  in 
cases  where  the  goods  are  not  actually  on  board,  is,  that  there  must  be  a  con- 
tract for  the  shipment  of  the  goods,  the  vessel  in  a  condition  to  receive  them, 
r  «lPn  1  '^^^^  ^^^  goods  ready  to  *be  put  on  board,  and  the  owners  be  pre- 
L  -^  vented  by  one  of  the  perils  insured  against  from  earning  the  freight. 

The  first  case  on  this  sul)ject  is  that  of  Tonge  v.  TVatts,  (a)  in  which  case, 
though  the  cargo  was  ready  to  be  put  on  board,  the  ship  was  not  in  a  fit  state 
to  receive  it,  nor  does  it  appear  that  there  was  any  contract  for  the  shipment. 

The  circumstances  of  the  case  were  these  : 

The  plaintiff  insured  on  ship  and  freight  at  and  from  Jamaica  to  Bristol. 
A  cargo  was  ready  to  be  put  on  board ;  but  the  ship  being  careening,  in  order 
for  the  voyage,  a  sudden  tempest  arose,  and  she  and  many  others  were  lost. 
The  rigging  and  parts  of  her  were  recovered  and  sold,  and  the  defendant  paid 
into  Court  as  much  as,  upon  an  average,  he  was  liable  to  for  the  loss  of  the 
ship  :  but  the  plaintiff  insisted  to  be  allowed  600/.  for  the  freight  the  ship  would 
have  ejirned  in  the  voyage,  if  the  accident  had  not  happened.  But  as  the  goods 
were  not  actually  on  board,  so  as  to  make  the  plaintijf's  right  to  freight  com- 
mence, Lord  Chief  Justice  Lee  held  he  could  not  be  allowed  it,  and  he  was 
nonsuited. 

But  if  the  polit^y  be  a  valued  policy,  and  part  of  the  cargo  be  on  board  when 
such  accident  happens,  the  rest  being  ready  to  be  shipped,  the  insured  may 
recover  to  the  whole  amount.  This  was  so  decided  in  the  case  of  Montgomery 
V.  Eggingfon,  {b)  in  an  action  brought  by  the  assured  on  a  policy  on  freight, 
valued  at  1500/.:  in  fa(;t,  only  500/.  wortli  of  freight  was  on  board,  when  the 
ship  was  driven  from  her  moorings  and  lost ;  but  goods  to  the  amount  of  the 
rest  of  the  freight  were  ready  to  be  shipped,  and  were  lying  on  the  quay  for 
that  purpose  at  the  time. 

(a)  3  T.  R.  362.  (i)   1  Bos.  &  Pull.  636. 

(«)  2  Strange,  1251.  (6)  3  T.  R.  362. 


BEGINNING   THE    ADVENTURE,   ETC.  89 

Lord  Kenyan,  Chief  Justice,  before  whom  the  cause  was  tried,  told  the  jury, 
that  the  question  for  their  consideration  was,  whether  this  was  a  mere  coloura- 
ble insurance  and  a  gaming  policy?  or  wliether  it  was  a  bona  fide  transaction? 
If  the  latter,  the  assured  was  entitled  to  recover  for  the  whole  value  in  the 
policy.  The  jury  found  for  the  whole  sum.  The  defendant's  counsel  obtained 
a  rule  for  a  new  *trial,  which  he  afterwards  abandoned,  the  Court  p  ^.  „.  -. 
being  strongly  of  opinion  against  him.  L  J 

In  commenting  upon  this  case.  Lord  Ellenborough.,  in  Forbes  v.  Aspinall,[a) 
says,  "The  grounds  of  this  decision  do  not  appear:  whether  it  proceeded 
upon  a  distinction  between  valued  and  open  policies  is  not  expressly  stated; 
and  it  might  be,  tliat  upon  an  open  policy  in  such  a  case.  Lord  Kenyan  and 
the  Court  might  have  tliought  the  assured  would  have  been  entided  to  recover 
in  respect  of  the  freight  of  the  goods  on  shore,  as  well  as  for  the  freight  of 
those  that  were  actually  put  on  board.  There  might  be  circumstances  in  that 
case  which  would  have  entitled  the  shipowner  to  full  freight,  had  the  owners  of 
the  goods  on  shore  refused  to  let  them  be  shipped,  and  the  ship  had  sailed  with 
that  part  only  whicli  she  had  on  board  :  there  might  have  been  a  contract  for 
giving  tlie  ship  a  full  loading,  or  it  might  have  been  considered  (though  it  is 
difficult  to  suppose  it  was)  that  as  the  residue  of  goods  to  complete  a  cargo  was 
ready  to  be  shipped,  and  lying  in  the  quay  for  the  purpose,  it  was  the  same  to 
the  assured  as  if  they  really  had  been  shipped.  If  that  case,  however,  is  to 
be  considered  as  having  decided,  that  upon  a  policy  estimating  the  freight  upon 
a  full  cargo  at  1500/.,  a  loss  by  a  peril  insured  against  may  be  recovered  to  that 
extent,  when  a  tliird  only  of  a  cargo  is  obtained,  and  freight  to  the  amount  of 
such  third  could  only  have  been  earned,  and  when  it  was  uncertain  whether 
more  could  ever  have  Iieen  procured :  we  should  pause  long  before  we  allowed 
ourselves  to  adopt  such  a  ground  of  decision :  we  should  hesitate  extremely 
before  we  should  say  that  1500/.,  the  calculated  amount  of  the  whole  intended 
risk,  should  be  paid  for  the  loss  of  500/.  incurred  in  respect  of  a  third  of  the 
intended  risk  ;  in  other  words,  that  a  total  loss  should  be  paid  for  a  loss  o^  only 
one-third  of  that  which  the  parties  to  the  insurance  contemplated  as  the  iclwie 
subject  insured.''^ 

So  likewise  in  the  case  of  Patrick  v.  Karnes,  (b)  which  was  -an  r-  ^-in.j  -j 
action  on  a  policy  of  insurance  on  the  freight  of  the  ship  Jaiie,  >-  "^     J 

valued  at  4000/.,  "at  and  from  the  ship's  port  or  ports  of  loading  in  all  or  any 
of  the  Cape  de  Verd  Islands  to  Liverpool.''''  The  Jane  was  purchased  at 
Sierra  Leone  by  Messrs.  Taylor  and  Waldron,  in  whom  the  interest  was 
averred:  their  plan  was  that  she  should  take  in  a  complete  cargo  of  orchella 
weed.  They  expectetl  that  this  would  be  supplied  by  Don  Emanuel  Mar- 
tinus,  the  governor ;  it  was  suggested  that  he  had  verbally  undertaken  to  do  so, 
but  there  was  no  evidence  of  any  binding  agreement.  The  ship  arrived  at  St. 
Nicholas  on  the  10th  of  August,  1812,  and  took  in  one  hundred  and  fifty 
bags  of  orchella  weed.  The  next  day  a  storm  came  on,  and  she  was  totally 
wrecked.  It  did  not  appear  that  there  was  more  orchella  weed  then  ready  to 
be  put  on  board :  but  there  were  persons  employed  in  St.  Nicholas  and  the 
other  islands  to  pick  and  prepare  what  should  be  a  sufficient  quantity  to  till  the 
ship.  The  defendants  paid  into  Court  sufficient  to  cover  the  freight  of  the  one 
hundred  and  fifty  bags.  It  was  contended,  on  the  authority  of  JMontgomery 
V.  Kggington,  that  the  plaintiff  was  entided  to  recover  for  a  total  loss.  Lord 
Ellenborough,  "If  a  contract  had  been  proved  for  supplying  the  ship  with  a 
full  cargo  at  a  stipulated  rate  of  freight,  it  would  have  appeared,  that  by  the 
event  which  has  happened  the  assured  would  have  been  deprived  of  a  profit 

(a)   13  East,  323.  (6)  3  Camp.  441. 


90  BEGINNING    THE    ADVENTURE,  ETC. 

which  they  must  otherwise  have  certainly  received,  and  they  would  have  had 
a  right  to  resort  to  the  underwriters  for  a  full  indemnity.  Nor  should  I  have 
considered  it  material  Avhether  that  contract  was  or  was  not  under  seal,  or 
whether  it  was  written  or  merely  verbal.  This  circumstance  only  varies  the 
mode  of  proof,  without  altering  tlie  principle  on  which  the  rights  of  the  parties 
depend.  Beyond  the  one  hundred  and  fifty  bags  actually  on  board,  the  interest 
of  the  assured  was  merely  in  expectation.  For  anything  that  appears,  Don 
Emanuel  Martinus^  the  governor,  might  have  refused  to  send  on  board  another 
bag,  without  subjecting  himself  to  an  action  |  and  although  the  storm  had  never 
r  *ifiQ  1  arisen,  the  ship  might  have  been  obliged  to  return  nearly  *empty. 
L  1"^  J  The  loss  of  freight  which  the  assured  now  demands,  therefore,  did 
not  necessarily  arise  from  the  event  against  which  the  underwriters  undertook 
to  indemnify  them." 

Though  the  commencement  of  the  risk  on  freight  is  generally  at  her  port  of 
loading,  yet  where  she  is  chartered  to  sail  to  a  certain  place  to  take  in  a  cargo, 
and  is  insured  "at  and  from  the  commencement  of  her  voyage  to  the  end," 
and  is  lost  on  her  way  out  to  her  port  of  loading,  the  policy  on  the  freight 
nevertheless  attaches.  Thus  in  Thompson  v.  Taylor,  («)  on  an  open  policy 
on  freight,  at  and  from  London  and  Teneriffe  to  any  of  the  TVcst  India  Islands, 
{Jamaica  excepted)  the  underwriters  were  held  liable  to  pay  the  insurance, 
though  the  ship  sailed  from  London  in  ballast,  and  was  captured  before  her 
arrival  at  Teneriffe,  where  the  cargo  was  to  be  put  on  board.  But  as  the  ship 
was  under  a  charter-party  to  depart  out  of  the  river  Thames,  and  proceed  to 
Teneriffe,  and  there  to  load  and  receive  on  board  from  the  freighters  five  hun- 
dred pipes  of  wine,  to  be  delivered  in  the  West  Indies,  for  the  freight  of  which 
five  hundred  pipes  the  freighters  covenanted  to  pay  35s.  per  pipe ;  the  Court 
held,  that  the  instant  the  ship  departed  from  the  Thames,  the  contract  for  freight 
had  its  inception,  and  the  plaintifi"  was  entitled  to  recover.  At  the  trial,  the 
plaintiff  had  obtained  a  verdict,  and  the  case  was  afterwards  brought  before  the 
Court  upon  a  motion  to  enter  a  nonsuit.     After  argument  at  the  Bar, 

Lord  Kenyan  said — "When  this  case  came  on  at  nisi  prius,  I  thought  the 
plaintiff  was  not  entitled  to  recover ;  because  I  considered  it  as  similar  in  every 
respect  to  that  of  Tonge  v.  JVatts,  and  had  it  been  so,  my  judgment  now 
would  have  gone  with  that  case.  But  this  case  depends  upon  its  own  peculiar 
circumstance's.  It  is  admitted,  that  if  this  contract  had  an  inception,  that  the 
right  to  freight  then  commenced,  and  the  policy  attached.  Now  by  the  charter- 
^  1  P'"'^y  ^^^^^  ^^^^  ^'^  inception  in  the  contract,  by  the  *departure  from 

L  '■  ^"^  J  the  Thames  ;  for  the  covenant  in  the  charter-party  was  to  go  from 
the  port  of  London.  In  the  case  from  Strange,  the  inception  of  the  contract 
would  have  been  by  taking  the  goods  on  board,  which  not  being  done,  the 
insurance  did  not  attach.  In  the  case  of  Montgomery  v.  Eggington,  there 
was  an  inception  of  the  contract,  and  the  plaintiff  recovered.  The  case  in 
Strange  importantly  differs  from  this;  but  I  am  now  completely  satisfied, 
though  the  case  is  new,  that  tlie  plaintiff  ought  to  recover." 

Mr.  Justice  Grose. — "In  this  case  the  freight  begins  to  run  in  consequence 
of  the  ship's  departure  from  London;  the  plaintiff,  tliereforc,  has  an  interest  in 
the  voyage.  But  in  Tonge  v.  Watts,  the  voyage  was  not  begun,  nor  were  the 
goods  on  board." 

Mr.  Justice  Lawrence. — "I  think  this  plaintiff  had  an  insurable  interest: 
for  it  seems  to  me  equally  as  strong  an  interest  as  the  profits  to  arise  from  a 
cargo  of  molasses,  which  have  been  held  to  be  an  insurable  interest.  (6)     It  is 


(fl)  6  T.  R.  478. 

\b)  Grant  v.  Parkinson,  see  ante,  p.  38,  43,  53. 


BEGINNING    THE    ADVENTURE,  ETC.  91 

said  that  the  plaintifT  had  a  mere  right  of  action  against  the  freighter ;  and  if 
he  had  not  provided  a  cargo,  though  the  plaintiff  might  recover  against  the 
freigliter  for  breach  of  contract,  vet  he  coukl  not  recover  against  the  under- 
writers. It  is  true  an  insurance  on  freight  could  not  have  heen  recovered,  if  the 
ship  had  proceeded  to  the  West  Indies  without  one.  But  here,  by  a  peril  in 
the  policy,  the  assured  is  prevented  from  earning  a  specific  freight  j  and,  there- 
fore, the  rule  for  entering  a  nonsuit  must  be  discharged."  (b) 

So  in  Horncaatle  v.  Suart,  (c)  where  a  ship  was  chartered  on  a  voyage  from 
London  \o  Dominica^  and  back  to  London,  at  a  certain  freight  upon  the  out- 
ward cargo,  and  after  delivering  her  outward  cargo  at  Dominica,  the  charterers 
\vere  to  provide  her  a  full  cargo  homeward,  at  the  current  freight  from  Domi- 
nica to  London,  it  was  held,  that  an  insurance,  by  the  owner  of  the  ship,  on 
the  freight  at  and  *from  Dominica  to  I^ondon,  attached  while  the  r  ^ippi  "i 
ship  lay  at  Dominica,  delivering  her  outward  cargo,  and  before  ■-  J 

any  part  of  the  homeward  cargo  was  shipped,  during  which  time  she  was  cap- 
tured by  an  enemy,  the  contract  of  affreightment  by  the  charter-party  being 
entire,  and  the  risk  on  the  policy  having  commenced,  and  it  being  impossible  to 
distinguish  this  case  from  that  of  Thompson  v.  7at//or  (supra.) 

In  the  Court  of  Common  Pleas,  in  case  of  Cellar  v.  jyr  Vicar,  («)  in  an 
insurance  on  freight  on  a  voyage  at  and  from  Demerara,  Berbice,  and  the 
Windward  and  Leervard  Islands  to  London ;  the  ship  being  at  Demerara,  an 
agreement  (not  in  writing)  was  entered  into  by  the  master  with  a  house  there 
for  a  freight  from  Berbice  to  L^ondon;  the  cargo  to  be  put  on  board  at  Berbice, 
and  the  ship  to  take  a  cargo  of  bricks  and  planks  from  Demerara  to  Berbice, 
and  deliver  them  there  ;  while  the  vessel  was  proceeding  to  Berbice,  with  this 
cargo  on  board,  she  met  Avith  an  accident,  and  in  consequence  never  earned  her 
freight.  This  was  held  not  to  be  a  loss  within  the  policy,  for  the  voyage  from 
Demerara  to  Berbice  had  nothing  to  do  with  the  voyage  insured.  The  voyage 
insured  was  from  Demerara  to  Jjondon,  or  from  Berbice  to  London,  or  from 
any  of  the  Windward  or  Leeward  Islands,  according  to  the  place  from  which 
the  ship  might  happen  to  sail  on  her  voyage  to  London.  Now,  in  this  case, 
such  voyage  never  commenced :  the  case  itself  excludes  any  inception  of  the 
voyage.  The  ship  took  in  a  cargo  for  Berbice,  and  then  expected  to  get  the 
cargo  she  was  to  carry  to  I^ondon. 

But  subsequently  to  this,  in  the  same  Court,  in  case  of  Atty  v.  Lindo,  [b) 
in  a  policy  on  freight  on  l)oard  the  ship  Stranger,  "at  and  from  London  to 
Jamaica,  with  liberty  to  touch  at  Madeira,  and  to  discharge  and  take  in  goods 
there  :"  it  appeared  in  evidence,  that  the  plaintiff,  as  owner,  had  agreed  with 
one  De  Franca,  hy  charter-party,  that  the  ship  should  take  in  goods  at  London, 
and  proceed  to  *  Madeira,  and  there  deliver  such  part  of  the  goods  ^  *i  Ap  "i 
shipped  at  Jjondon  as  the  agents  of  De  Franca  should  direct,  and  L  J 

receive  on  board  wine,  and  proceed  to  Jamaica,  and  there  deliver :  and  the 
freighter  agreed  to  pay  135/.  in  full,  for  freight,  during  the  whole  voyage  from 
London  to  Madeira,  and  from  thence  to  Jamaica;  such  freight  to  be  paid  in 
Madeira,  on  delivery  of  the  goods  shipped  at  London  for  that  place,  by  Ma- 
deira wine  at  40/.  per  pipe,  to  be  carried  in  the  said  ship  free  of  freight.  The 
ship  arrived  at  Ma.hira,  and  delivered  all  her  I^ondon  cargo,  except  thirty- 
three  casks  of  coal,  which  the  captain  kept  on  board  to  stiffen  his  ship.  Part 
of  the  cargo  for  Jamaica  was  received  on  board,  but  not  the  wine  to  be  paid 
for  freight,  when  a  gale  arose,  which  obliged  the  captain  to  cut  his  cable  and 

{b)  See  also  the  case  of  Mackenzie  v.  Shedden,  2  Camp.  431. 
(c)  7  East,  400.  (a)   1  N.  R.  23. 

(/!»)   1  N.  R.  236. 


92  BEGINNING    THE    ADVENTURE,  ETC. 

run  out  to  sea,  where  he  was  captured.  The  Court  unanimously  confirmed 
the  verdict  of  the  jury,  holding  the  underwriters  liable  for  a  total  loss  of  freight, 
for  the  contract  of  freight  was  entire,  and  the  charter-party  treats  the  whole  as 
one  voyage.  The  whole  freight  is  to  be  paid  in  one  gross  sum,  and  that  sum  is 
to  be  paid  in  Madeira  wine,  valued  at  a  certain  sum  at  Madeira.  The  pay- 
ment, therefore,  is  local  and  indivisable;  and  on  payment  of  the  freight  in  wine, 
it  is  to  be  carried  on  in  this  particular  ship  to  Jamaica.  Here  the  accident 
happened  before  the  condition  was  performed,  on  which  the  freight  was  paya- 
ble, namely,  the  delivery  of  the  goods  shipped  at  London. 

In  short,  the  great  point  in  all  these  eases  seems  to  be,  wliether  there  is  one 
entire  contract  for  the  voyage  out  and  home,  and  whether  the  freight  is  entire : 
for  the  Courts  seem  to  have  thought  that  the  doctrine  laid  down  in  Thompson 
v.  Tai/lor,  and  the  other  cases  of  that  description,  ought  not  to  be  extended. 
But  wherever  there  has  been  no  contract,  the  rule  in  the  old  case  of  Tonge  v. 
Watts  («)  must  prevail. 

,.  -^      Thus  in  an  action  of  Forbes  and  another  v.  Cowie,  [b)  on  *an 

|_  ''Ibv  J  ^p^j^  policy  on  freight  of  the  shij)  CJnsunck  at  and  from  any  port 
or  ports  of  Hayti  (St.  Domingo)  to  Liverpool:  the  Chisivick  sailed  from 
Liverpool.,  and  'arri^  ed  at  Hayti.,  with  a  cargo  of  plaintifl"s,  which  was  to  be 
bartered  for  other  goods  to  be  brought  back  to  Liverpool  in  the  ship.  Part  of 
the  outward  cargo  was  bartered  for  fifty-five  bales  of  cotton,  which  were  put 
on  board.  The  remainder  of  the  outward  cargo  was  still  on  board  when  the 
ship  was  lost  by  perils  of  the  sea.  The  remaining  part  of  the  outward  cargo, 
though  damaged,  was  saved,  and  in  twelve  days  after  the  loss  of  the  ship,  was 
exchanged  for  other  goods  the  produce  of  St.  Domingo.,  the  freight  of  which 
would  have  been  of  larger  value  than  the  sum  insured,  if  the  ship  had  not  been 
lost.  The  defendant  settled  for  the  freight  of  the  fifty-five  bales,  without  pre- 
judice to  a  further  claim  for  loss  of  the  freight  of  the  homeward  cargo.  This 
case  on  tlie  part  of  the  plaintiff  was  compared  to  that  of  Horncastle  v.  Suart,  (c) 
and  much  pressed.     But 

Lord  Ellenbo rough  was  more  disposed  to  doubt  the  authority  of  that  case 
than  to  extend  it.  There,  however,  there  was  one  charter-party  for  the  out- 
ward and  homeward  voyage,  and  the  freight  was  entire.  That  is  the  only 
ground  upon  which  the  decision  can  be  sustained.  Here,  I  can  entertain  no 
doubt.  The  underwriter  does  not  insure  that  the  ship  shall  have  a  freight,  but 
only  that  the  owner  shall  be  indemnified  for  the  loss  of  the  freight  of  goods  put 
on  board.  Wliat  goods  were  on  board  when  the  ship  was  lost.''  The  outward 
goods.  They  were  not  to  be  brought  home  on  freight :  they  were  to  be  bar- 
tered at  >SV.  Domingo.  They  were  the  means  by  which  the  homeward  cargo 
was  to  be  procured.  How  then  have  the  plaintiffs  been  damnified  upon  the 
subject-matter  of  this  insurance.^  By  losing  the  freight  of  fifty-five  bales  of 
cotton,  and  that  they  have  been  already  paid  by  the  defendant.  The  plaintiffs 
were  nonsuited. 

r  *iRfl  "1  ^"^  ^^^  ensuing  Term,  the  Court  of  King's  Bench  refused  a  *rule 
L  -^  to  show  cause  why  this  nonsuit  should  not  be  set  aside.      Lord 

Ellenborongh  on  that  occasion  said,  ''if  there  Jiad  been  a  bag  of  money  on 
board  to  purchase  a  cargo  when  the  loss  happened,  would  this  have  been 
freighted  ;  and  whether  it  was  possible  to  draw  a  distinction  between  goods  to 
be  bartered  for  a  cargo  and  money  to  pay  for  one?"  The  other  .Judges  con- 
curred and  expressed  an  oi)iai()n,  that  the  cases  upon  this  subject  ought  by  no 
means  to  receive  anv  extension. 


(a)  Ante,  p.  160.  {b)   1  Camp.  520. 

(c)  Ante,  p.  164. 


BEOINNINC    THF.    ADVENTURK.   ETC.  93 

The  same  case  of  Forbes  v.  ^flspinalK  («)  on  a  valued  policy,  came  before 
the  Court  in  Hilary  Term,  1811,  was  fully  discussed  a!  the  IJar,  and  the  Court, 
by  Lord  Elloiboruwj^h,  delivered  a  very  elaborate  judgment,  conformably  to 
what  is  said  above. 

His  Lordship  says,  "To  recover  in  any  case  uj)on  a  policy  on  freight,  it  is 
incumbent  on  tlie  assured  lo  prove,  that  unless  some  of  the  perils  insured  against 
had  intervened  to  prevent  it,  some  freight  would  have  been  earned :  and  where 
the  policy  is  open,  the  actual  amount  of  the  freight,  which  would  have  been  so 
earned,  limits  the  extent  of  the  underwriter's  liability.  In  every  action  upon 
such  a  policy  evidence  is  given,  eitlicr  that  the  goods  were  put  on  board,  from 
the  carriage  of  which  freight  would  result,  or  that  there  was  some  contract  under 
which  the  shipowner,  if  the  voyage  were  not  stopped  by  the  perils  insured 
against,  would  have  been  entitled  to  demand  freight:  and  in  either  case,  if 
the  policy  be  open,  the  sum  payable  to  the  shipowner  for  freight,  together  with 
the  premiums  of  insurance  and  commissions  thereon,  is  the  extent  to  which  the 
underwriters  are  chargeable.  In  this  case,  therefore,  as  there  was  no  contract 
under  which  the  shipowner  could  claim  freight,  but  for  the  goods  actually  ship- 
ped on  the  homeward  vo)-age,  the  assured  could  have  made  no  claim,  had  this 
been  an  open  policy,  but  to  the  extent  of  the  actual  freight  on  the  fifty-five  bales 
of  cotton  which  were  sliipped  for  this  country,  and  of  the  premiums  and  com- 
mission thereon.  'V\\e  question  then  is,  whether  ''it  makes  any  p  ^-leq  -i 
essential  difference  that  this  is  the  case  of  a  valued  policy.^     And  L  J 

we  are  of  opinion,  upon  full  consideration,  that  it  does  not.  The  object  of 
valuation  in  a  policy  is  to  fix,  by  agreement  between  the  parties,  an  estimate 
upon  the  subject  insured,  and  to  supersede  the  necessity  of  proving  the  actual 
value,  by  specifying  a  certain  sum  as  the  amount  of  that  value.  In  fixing  that 
sum,  if  the  assured  keep  tairly  within  the  principles  of  insurances,  which  is 
merely  to  obtain  an  indemnity,  he  will  never  go  beyond  the  first  cost,  in  the 
case  of  the  goods,  adding  thereto  only  the  premium  and  commission,  and  if  he 
think  fit,  the  probable  profit ;  and  in  the  case  of  freight  he  will  not  go  beyond 
the  amount  of  what  the  ship  would  earn,  with  the  premiums  and  conmiissions 
thereon.  The  valuation,  however,  in  the  case  of  goods,  looks  to  all  tlie  goods 
intended  to  be  loaded  ;  and  in  the  case  of  freight,  it  looks  to  freight  upon  all 
the  goods  the  ship  is  intended  lo  carry  upon  the  voyage  insured ;  and  if  by  the 
perils  insured  against  in  a  valued  policy  on  goods  part  only  of  the  goods  intended 
to  be  covered  be  lost,  the  valuation  must  be  opened,  and  the  assured  can  only 
recover  in  respect  of  that  part;  and  so,  if  by  the  perils  insured  against,  the 
freight  of  part  only  of  the  goods  to  be  carried  be  lost,  the  assured  can  only 
recover  in  respect  of  that  loss,  according  to  the  proportion  which  that  part  bears 
to  the  whole  sum  at  which  the  entire  freight  Avas  estimated  in  the  valuation." 

But  where  a  ship  was  chartered  from  Liverpool  to  Jamaica,  there  to  take 
on  board  a  full  cargo  for  Liverpool.,  at  the  current  rate  of  freight  to  be  paid  at 
one  month  from  the  discharge  of  her  cargo  at  Liverpool,  and  an  insurance 
made  on  the  homeward  freight,  the  ship  bemg  lost  at  Jamaica  when  she  had 
taken  in  a  part  of  the  homeward  freiglit,  and  the  rest  ready  to  be  shipped,  the 
Court  held  tliis  case  was  governed  by  Thompson  v.  Taylor,  and  Hornc.astle. 
V.   Suarf,  and  quite  reconcileable  with  Forbes  v.  .ispinall.  {b) 

*In  the  case  of  TJll/iamson  v.  Lines,  (c)  which  was  :m  action  p  *i7n  "i 
on  a  policy  '-on  freiglu"  at  anil  from  Algoa  Bap  and  Table  Bap.  ■-  -J 

both  or  either,  to  London:  the  d{?claration  stated  that  the  ship  had  arrived,  and 
was  in  good  safety,  at  .'llgoa  Bap,  and  that  a  homeward  cargo  was  ready  for 

(o)   13  East,  323.  (6)  Davidson  v.  Willasey,  1  M.  &  S.  313. 

(c)   1  M.  &  R.  88;  8  Bing.  8,  n. 


94  BEGINNING    THE    ADVENTURE,  ETC. 

her  under  a  charter-party,  and  that  before  it  was  put  on  board  she  was  lost  by 
perils  of  the  sea.  Plea,  the  general  issue.  At  the  trial  the  captain  stated  that 
he  had  arrived  willi  an  outward  cargo  at  Table  Bay,  and  discharged  such  part 
of  it  as  was  destined  for  that  place,  and  had  taken  up  about  sixty  tons  of  goods 
for  MQ;oa  Bay,  where  he  arrived  on  the  30th  September,  and  came  to  an 
anchor :  from  that  time  he  was  engaged  till  tlie  8th  October  in  discharging 
his  outward  carcro  when  the  weather  would  permit,  and  that  on  the  evening  of 
the  8th  October,  he  gave  orders  that  no  more  of  the  outward  cargo  should  be 
discharored  till  some  of  the  homeward  cargo  should  be  on  board,  as  her  load 
was  reduced  to  seventy  tons,  which,  in  his  judgment,  was  requisite  for  the 
safety  of  the  ship  in  the  situation  in  which  she  was  placed :  and  that  he  in- 
tended to  take  on  board  part  of  the  homeward  cargo,  whicli  was  ready  for  him, 
the  next  morning.  Before  that  time  however,  a  storm  arose,  and  the  ship  was 
lost :  it  was  contended  for  the  defendant  that  the  vessel  was  not  at  the  time  of 
the  loss  in  a  condition  to  take  in  her  homeward  cargo,  and  that,  therefore,  the 
voyage  "at  and  from  Algoa  Bay''^  had  not  commenced.  Lord  Lyndhurst, 
C.  B.,  told  the  jury  "that  the  question  for  them  was  merely  one  of  fact :  that 
if  the  ship  was  in  a  condition  to  begin  to  take  in  her  homeward  cargo,  tlie 
plaintiff  was  entitled  to  recover ;  if  not,  the  verdict  ought  to  be  for  the  defend- 
ant."    The  jury  found  for  the  plaintiff. 

And  the  cases  or  Truscott  v.  Christie,  [b)  Park  v.  Hcbson,  (c)  Warre  v. 
Miller,  id)  are  antliorities  to  show  tliat  in  all  cases  where  the  freight  is  lost  by 
r  »i-Ti  "1  ^  peril  insured  against,  *the  assured  is  entided  to  recover,  though 
L  J  no  goods  be  actually  on  board,  provided  the  ship  is  ready  to  receive 

them  and  the  goods  are  ready  to  be  shipped,  or  the  owner  has  a  contract  with 
anv  one  for  their  shipment. 

The  principle  of  law  laid  down  in  the  foregoing  cases  was  recognized  in  the 
two  recent  decisions  of  Flint  v.  Flemyng,  in  the  Court  of  King's  Bench, 
Trin.  Term,  1830,  and  Devanx  v.  F Anson,  in  the  Court  of  Common  Pleas, 
1839.  The  first  of  these,  Flint  v.  Flemyng,  (o)  was  an  action  on  a  policy  of 
insurance,  dated  the  7th  Jan.  1828,  "on  freight,"  on  the  ship  Hope,  at  and 
from  Madras  to  London.  At  the  trial,  before  Lord  Tenterden,  C.  J.,  at  the 
London  Sittings,  after  Trinity  Term,  1829,  it  appeared  that  the  ship  sailed  on 
her  outward  voyage  on  the  5th  August,  1827,  and  arrived  in  Madras  Roads, 
on  the  30th  of  November,  of  that  year.  From  that  day  till  the  5th  of  Decem- 
ber, the  crew  were  employed  in  discharging  the  outward  cargo,  and  on  the  6th 
of  that  month  the  ship  was  lost  by  the  perils  of  the  sea.  No  part  of  the  home- 
ward cargo  was  then  shipped ;  but  the  captain  had  purchased  at  Madras,  by 
order  and  on  account  of  the  plaintiff,  his  owner,  twenty -five  tons  of  red  wood; 
and  a  commercial  house,  then  trading  under  the  firm  of  Binny  &  Co.,  had  con- 
tracted to  ship  one  hundred  and  twenty-two  tons  of  saltpetre ;  and  Webster, 
one  of  the  partners  of  that  house,  engaged  to  ship  ninety  tons  of  light  goods, 
but  as  to  those  goods  there  was  not  any  contract  in  writing.  It  was  objected 
for  the  defendant,  let.  That  the  plaintiff  could  not  recover  on  a  policy  on  freight 
the  loss  which  he  sustained  by  having  been  deprived  of  the  opportunity  of  car- 
rying his  own  goods  in  his  own  ship  :  2nd,  That  tliere  was  no  contract  to  ship 
tlie  light  goods,  and  that,  therefore,  as  to  them,  the  risk  had  not  attached. 
Lord  Tenterden  was  of  opinion  that  though  tlie  profit  made  by  a  shipowner 
by  carrying  his  own  goods  in  his  own  ship  was  not  strictly  freight,  yet  that 
that  word,  according  to  mercantik;  language,  miglit,  in  a  policy  of  insurance, 
_    ^  "1  ^f^irly  mean  that  profit  which  a  shipowner  expected  to  make  by 

L      ^ ''^     J  employing  his  ship  to  carry  his  own  goods ;  and  as  to  the  ninety 


(b)  2  B.  «&  B.  320;  5  Moore,  33.  (c)  Cited  in  2  B.  &  B.  326. 

\d)  4  B.  &  C.  538 ;  7  D.  «Sc  R.  1.  (a)   1  B.  &  Ad.  45. 


BEGINNING    THE    ADVENTURE,   ETC.  95 

tons  of  liffht  goods,  ho  told  the  jury  that  if  the  cnptain  had  a  roasonablc  assn- 
rance  that  they  would  be  shipped,  the  assured  had  a  right  to  recover  in  respect 
to  thein  the  freight  which  the  vessel  would  have  earned  if  they  had  been  shipped 
and  she  had  performed  the  voyage,  tliough  there  was  not  any  such  contract  as 
could  l)e  enforced  by  action.  A  verdict  haviug  been  found  for  the  amount  of 
the  freight  of  all  the  goods,  a  rule  nisi  was  obtained  upon  both  tlicse  points. 

Lord  Tenferden. — "If  it  be  a  necessary  ingredient  in  the  composition  of 
freight  that  there  should  be  a  money  payment  by  one  person  to  another,  the 
benefit  accruing  to  a  shipowner  from  using  his  own  ship  to  carry  his  own  goods 
is  not  freight.  Hut  if  the  term  'freight,'  as  used  in  a  policy  of  insurance, 
import  the  benefit  derived  from  the  employment  of  the  ship,  then  there  has 
been  a  loss  of  freight.  It  is  the  same  thing  to  the  shipowner  whether  he 
receives  the  benefit  of  the  use  of  his  ship  by  a  money  payment  from  one  per- 
son who  charters  the  whole  ship,  or  from  various  persons  who  put  specific 
quantities  of  goods  on  board,  or  from  persons  who  pay  him  the  value  of  his 
own  goods  at  the  port  of  delivery,  increased  liy  their  carriage  in  liis  own  ship. 
The  assured  may  fairly  consider  that  additional  value  as  freight,  and  so  term  it 
in  a  policy.  Then,  as  to  tlie  other  point,  to  recover  on  a  policy  on  freight,  the 
assured  must  prove  that  but  for  the  intervention  of  some  of  the  perils  insured 
against,  some  freight  would  have  been  earned,  either  by  showing  that  some 
goods  had  been  put  on  board,  or  that  there  was  some  contract  for  doing  so. 
The  question  was  not  submitted  to  the  jury  whetlier  there  was  any  contract 
between  Webster  (acting  on  behalf  of  Binny  &  Co. )  and  the  captain  for  the 
shipment  of  the  light  goods.  The  defendant,  tlierefore,  is  entided  to  a  new 
trial  upon  thatgrouud;  but  he  must,  at  all  events,  have  a  verdict  against  him 
for  the  amount  of  the  freight  on  tlie  red  wood  and  saltpetre.  It  would,  there- 
fore, be  advisable  for  the  defendant  to  pay  to  the  plaintiff  the  costs  of  this 
action  and  *the  freight  of  the  red  wood  and  saltpetre,  and  that  he  p  si-o  n 
should  undertake  to  pay  the  freight  of  tlie  light  goods,  if,  on  refer-  •-  '  J 
ence  to  an  arbitrator,  it  shall  be  found  that  there  was  a  contract  to  ship. these 
goods." 

Which  suggestion  was  adopted. 

In  the  next  case  of  Devaux  v.  r.^nson,  («)  the  owner  of  a  vessel  effected 
a  policy  of  insurance  on  freight  "at  and  from  Calcutta,  or  any  port  or  place 
on  the  Coromandel  Coast,  to  any  port  or  place  at  Bourbon.''''  The  vessel  put 
in  at  Coringa,  a  port  on  the  Coromandel  Coast,  for  the  purpose  of  repair. 
The  repairs  were  completed,  and  a  full  cargo  purchased  for  the  owner,  and 
deposited  in  warehouses  at  a  place  about  seven  miles  from  Coringa,  ready  to 
be  put  on  board.  Whilst  in  the  act  of  being  got  out  of  the  dock  in  which  the 
repairs  were  done,  the  vessel  received  such  injury  as  to  make  her  a  perfect 
wreck,  and  render  abandonment  necessary.  A  verdict  was  taken  for  the  plain- 
tiff, subject  to  the  opinion  of  the  Court  upon  a  special  case,  to  which  Ave  must 
refer  the  reader,  it  being  too  long  for  insertion.  Lord  C.  J.  Tindal  now 
delivered  the  judgment  of  the  Court.  His  Lordship,  after  stating  the  facts  of 
the  case,  said, — "The  first  objection  involves  two  distinct  and  separate  heads 
of  consideration.  First,  whether  the  interest  of  the  assured  in  the  subject- 
matter  of  insurance  is  properly  described  in  the  policy  as  freight.  Secondly, 
if  such  description  is  sufficient  in  the  policy,  then,  whether  the  interest  of  the 
assured  iiad  commenced  before  the  loys  happened. 

"1.  We  consider  the  first  question  to  be  set  at  rest  by  the  decision  of  the 
Court  of  King's  Bench  in  the  case  of  Flint  v.  Flemyng,  (b)  and  hold  it  now 
to  be  established  law  that  the  assured,  under  an  insurance  upon  freight,  may 


(a)  7  Scott,  507;  .">  B.  N.  C.  519,  (/!»)   1  B.  &  Ad.  45. 

Vol.  VIL— H 


96  BEGINNING.    THE    ADVENTURE,   ETC. 

recover  tlie  profits  expected  to  be  made  by  carrying  their  ov,  n  (roods  in  their 
own  ship  upon  the  voyage  insured. 

"2.   The  second  head  of  inquiry  may  be  subject  to  some  degree  of  doubt 
^  1  ''^"'^  difficulty;  but,  upon  the  whole,  we  "concur  in  opinion  that, 

L  *^'''*  J  under  the  circumstances  stated  in  the  case,  the  interest  of  the  as- 
sured had  commenced,  and  the  policy  had  attached  at  the  time  the  loss  took 
place. 

The  argument  -which  has  been  mainly  relied  upon  on  the  part  of  the  under- 
writers is  this,  that,  in  order  to  enable  the  assured  to  recover  u  loss  upon  a 
policy  on  freight,  there  must  be  a  cargo  either  actually  put  on  board,  or  ready 
to  be'  put  on  board,  under  a  contract  for  that  purpose ;  and  in  the  latter  case 
the  ship  must  also  be  ready  to  receive  the  cargo  :  and,  in  this  case,  it  is  con- 
tended by  the  underwriter  that  by  reason  of  the  loss  of  the  ship  before  she 
was  out  of  dock  and  actually  afloat,  she  was  never  in  a  condition  or  ready  to 
receive  the  goods  on  board :  the  defendant  relying  on  the  expression  used  by 
Lord  Ellenhorovgh,  in  giving  the  judgment  of  the  Court  of  King's  Bench,  in 
Forbes  v.  Jlspinall,  (a)  that,  in  order  to  recover  on  a  policy  on  freight,  a  full 
caro-o  must  be  ready  to  be  shipped,  and  the  ship  must  be  in  a  condition  to 
receive  the  cargo.     The  proposition  that  the  ship  must  be  ready  to  receive  her 
cargo,  had,  in  that  case,  an  immediate  bearing  and  application  to  the  facts  then 
before  the  Court;  for  the  policy  was  on  freight  upon  the  homeward  voyage, 
and  the  homeward  cargo  was  to  be  made  by  barter  of  the  outward  cargo,  and 
the  whole  of  the  outward  cargo  had  not  been  bartered  at  the  time  of  the  loss, 
part  of  it  being  still  on  board,  so  that  it  was  impossible,  under  those  circum- 
stances, that  the  homeward  cargo  could  be  received  on  board  the  ship  at  the 
time  of  her  loss.     In  that  case,  therefore,  the  loading  of  the  homeward  cargo 
on  board,  upon  which  depended  the  attaching  of  the  policy,  and  the  commence- 
ment of  the  right  of  the  assured  to  the  freight,  was  not  prevented  by  any  of 
the  perils  insured  against  by  the  policy  as  the  proximate  and  immediate  cause 
of  such  prevention,  but  by  a  cause  altogether  without  the  risks  included  in  the 
policy,  namely,  by  the  inability  of  the  ship  to  receive  the  cargo  on  board,  by 
reason  of  her  being  then  partly  loaded  with  the  outward  cargo;  whereas,  in 
^  1  ^^^  *case  now  before  us,  it  appears  that  the  ship  was  on  the  14th 

L  J  Jliigust  quite  ready  to  go  to  sea,  and  to  receive  the  cargo  on  board, 

that  nothing  remained  to  prevent  her  sailing  but  the  getting  her  out  of  dock, 
and  that  the  loss  of  the  ship,  and  consequent  inability  to  recei\'e  the  cargo, 
was  occasioned  solely  by  the  endeavour  to  get  her  out  of  the  dock  and  afloat 
in  the  river.  If,  therefore,  the  loss  of  the  ship  in  this  case  was  occasioned  by 
any  of  the  perils  within  the  meaning  of  the  policy,  the  case  is  distinguishable 
from  that  of  Forbes  v.  .ispinall  in  this,  that  the  immediate  cause  of  preven- 
tion of  taking  the  goods  on  board  was  not  occasioned  by  the  inability  of  the 
ship  to  receive  the  cargo,  but  by  tlie  ship  being  disabled  to  receive  the  cargo 
by  one  of  the  perils  insured  against.  For,  so  far  as  relates  to  the  cargo,  we 
think  it  must  be  considered  as  in  a  sufficient  state  of  readiness  to  be  put  on 
board.  It  was  purchased  by  the  assured  for  the  express  purpose  of  the  adven- 
ture mentioned  in  the  policy  :  it  was  comparatively  useless  for  any  other  pur- 
pose ;  and  the  whole  of  thc^  purchase  Avas  completed  before  the  repairs  were 
finished ;  and  although  it  hud  been  deposited  in  warehouses  at  seven  miles 
distance,  yet  it  was  deposited  there  for  the  purpose  of  being  put  on  board;  and 
it  is  impracticable,  as  it  appears  to  us,  to  lay  down  any  precise  rule  as  to  the 
distance  within  wliich  the  cargo  must  be  from  the  ship  at  the  time  of  the  loss, 
wliether  close  to  it  upon  the  quay,  as  in  Flint  v.  FIcmyng,  [b)  or  at  a  more 

(a)  13  East,  331.  (i)   1  B.  &  Ad.  45. 


BEGINNING    THE    ADVENTURE,  ETC.  97 

considerable  distance,  as  in  the  present  case.  All  that  it  seems  necessary  to 
determine  with  respect  to  the  cargo  being,  that  it  must  have  become  the  pro- 
perty of  the  parties  insured  by  a  contract  made  with  a  view  to  its  being  sent 
on  board,  and  actually  in  a  state  of  readiness,  reference  being  had  to  the  nature 
and  description  of  the  voyage  insured,  to  be  put  on  board  when  the  ship  arrives 
at  the  place  of  deposit." 

When  the  words  "at  and  from"  a  given  place  are  used  in  a  policy  of  insu- 
rance, the  risk  is  always  understood  to  commence  upon  the  ship's  first  arrival 
at  that  place. 

•■And  it  has  also  been  held  in  the  case  of  Chitty  v.  Selwyn,  (a)  r-  ^,„^  -. 
that  when  the  ship  is  insured  "at  and  from"  a  given  place,  and  L  J 

it  arrives  at  diat  place,  as  long  as  the  sliip  is  preparing  for  the  voyage  upon 
which  it  is  insured,  the  underwriters  are  liable^  but  if  all  thoughts  of  the  voy- 
age be  laid  aside,  and  the  ship  lie  there  five,  six,  or  seven  years  with  the 
owner's  privity,  it  shall  not  be  said  the  underwriter  is  liable,  for  it  would  be 
to  subject  him  to  the  whim  and  caprice  of  the  owner  who  chooses  to  let  his 
ship  lie  and  rot  there.  And,  therefore,  in  the  case  of  Palmer  v.  MarshaU,  {b) 
which  was  on  a  policy  of  insurance  on  the  yacht  Ruhy^  "at  and  from  Bristol 
to  London,''''  the  policy  bearing  date  28th  January,  1831,  and  it  appeared  at 
the  trial,  that  the  Ruby,  at  the  date  of  the  policy,  was  lying  in  the  float  at 
Bristol,  where  she  continued  till  17th  May,  and  then  commenced  her  voy- 
age round  the  Land's  End,  and  was  run  down  on  the  21st  May ;  and  that 
as  the  vessel  was  lying  in  port  complete  and  ready  for  sea  for  three  months 
after  the  execution  of  the  policy  before  she  sailed,  it  was  a  material  variation 
of  risk. 

And  in  the  case  of  Smith  v.  Surridge,  (c)  where  a  ship,  the  Resolution, 
was  insured  "at  and  from  Pelleiv  to  I^ondon,''''  it  was  proved  that  she  remained 
a  considerable  time  at  Pellew  to  complete  her  repairs  before  she  commenced 
her  voyage;  an  objection  was  made  that  the  delay  avoided  the  policy.  Lord 
Kenyon  said,  "that  if  there  was  any  unreasonable  delay  on  the  part  of  the 
assured,  there  was  no  doubt  it  would  avoid  the  policy,"  though  he  afterwards 
observed,  that  "the  delay  was  not  a  voluntary  delay,  nor  such  as  amounted  to 
the  discharge  of  the  policy." 

But  it  is  not  necessary,  in  making  an  insurance  "at  and  from"  a  given  place, 
that  the  ship  should  be  there  at  the  time :  all  that  is  requisite  is,  that  there 
should  not  be  a  delay  elapse  between  executing  the  policy  and  her  arrival  at 
the  place,  as  to  constitute  a  material  variation  of  risk.  In  Hull  v.  Cooper,  (rf) 
*Lord  Ellenhoroiigh  says,  "When  a  broker  proposes  a  policy  to  p  ^.^^  -. 
an  underwriter  on  a  ship  '  at  and  from'  a  certain  place,  it  imports  L  '  J 
either  that  the  ship  is  there  at  the  time,  or  shordy  will  be  there ',  but  it  never 
was  understood  that  the  terms  of  such  a  policy  imported  that  the  ship  was 
there  at  the  very  time,  so  as  to  make  the  assured  guilty  of  deception  if  she  was 
not.  It  was  a  question  for  the  jury  whether  the  delay  materially  varied  the 
risk  in  this  instance."  And  in  another  case  of  Mount  v.  Larkins,  [a)  Lord 
C.  J.  Tindul  says,  "What  is  the  difierence  with  respect  to  the  alteration  of 
the  voyage,  whether  this  unreasonable  and  unjustifiable  delay  takes  place  in 
the  course  of  the  ship's  voyage  to  S'mgapore,  or  after  the  ship  is  at  Singa- 
pore? The  underwriter  has  as  much  right  to  calculate  on  tlie  outward  voyage 
in  which  the  ship  is  engaged  being  performed  in  a  reasonable  time,  and  without 
any  delay,  in  order  that  the  risk  may  attach,  as  he  has,  that  the  voyage  insured 

(«)  2  Atk.  359.  (A)  8  Bing.  79. 

(c)  4  E.sp.  25.  \d)    14  East.  479. 

(a)  8  Bing.  122. 


98  BEGINNING    THE    ADVENTURE,  ETC. 

shall  be  commenced  within  a  reasonable  lime  after  the  risk  has  attached." 
There  has  been  a  very  recent  case  in  the  Court  of  Common  Pleas  on  this  sub- 
ject, and  in  which  reference  was  made  to  the  above  case  of  Mount  v.  Larkins. 
This  was  the  case  of  PhiUipps  v.  Irving,  (b)  The  action  was  on  a  policy  of 
assurance  on  the  ship  Broxbournebnrg,  "at  and  from  London  io  Bombay^ 
and  thence  to  China  and  back  to  the  United  Kingdom,  with  liberty  to  touch, 
stay,  and  trade  at  all  ports  and  places  on  this  side,  at,  or  beyond  the  Cape  of 
Good  Hope.  The  question  was,  whether  the  ship  had  stayed  an  unreasonable 
time  at  Bombay.  Tindal,  C.  J.,  "It  may  be  collected  from  numerous  cases, 
that  delay  before  or  after  the  commencement  of  the  voyage  insured,  is  not 
equivalent  to  a  deviation  unless  it  be  unreasonable." 

When  the  policy  is  "at  and  from  an  island  or  district  comprehending  several 
ports,"  a  policy  on  the  homeward  voyage  protects  the  sailing  from  one  port  to 
another  in  the  same  island  or  district,  but  the  outward  voyage  ceases  after  she 
r  *T7S  "1  ^"^^  *been  moored  at  the  first  port.  Thus  in  the  case  of  Camden 
L  J  V.  Co7vIcy,  («)  which  was  an  action  on  a  policy  of  insurance  on  a 

ship  "at  and  from  Jamaica  to  London.''''  The  ship  had  also  been  insured 
"from  I^ondon  to  Jamaica''''  generally,  and  Avas  lost  in  coasting  the  island, 
after  having  touched  for  some  days  at  one  port  there,  but  before  she  had  deliv- 
ered all  her  outward-bound  cargo  at  the  other  ports  in  the  island.  This  was 
an  action  on  the  homeward  policy ;  and  in  order  to  shew  at  what  time  the 
homeward-bound  risk  commenced,  it  was  necessary  to  shew  at  what  time  the 
outward-bound  risk  determined ;  and  the  jury,  which  was  special,  after  an 
examination  of  merchants  as  to  the  custom,  by  their  verdict  decided  tiiat  the 
outward  risk  ended  when  the  ship  had  moored  in  any  port  of  the  island,  and 
did  not  continue  till  she  came  to  the  last  port  of  delivery.  In  Trin.  Term  fol- 
lowing, a  motion  was  made  for  a  new  trial,  but  it  was  refused,  because  it  was 
thoroughly  tried,  and  no  new  light  could  be  thrown  upon  it,  although  Lord 
Mansfield  said  the  inclination  of  his  opinion  at  the  trial  was  the  contrary  way. 
Mr.  J.  J'Vilmot  thought  that  the  jury  had  put  the  right  construction  upon  the 
policy. 

In  a  similar  case  of  Barras  v.  T^ondon  Assurance  Company.,  (b)  liOrd  Mans- 
field laid  down  the  same  doctrine  to  the  jury,  viz  :  that  the  outward  risk  upon 
"the  ship"  ended  twenty-four  hours  after  its  arrival  in  the  first  port  of  the 
island  to  which  it  was  destined :  but  tliat  the  outward  policy  on  goods  con- 
tinued till  they  were  landed.  The  law  laid  down  in  the  last  decisions  was  con- 
firmed in  a  subsequent  case,  of  Leigh  v.  Mather,  (c)  It  was  an  action  on  a 
policy  of  insurance  on  "the  sliip  Falliser.,'"  and  on  goods  on  board  thereof  on 
a  voyage  at  and  from  Georgia  to  Jamaica.''^  The  sliip  arrived  in  Montego 
Bay,  and  moored  at  anchor,  and  there  also  the  agent  of  the  plaintiff'  sold  and 
r  ^17Q  1  ''clivercd  the  greatest  part  of  the  cargo  to  Messrs.  Adams  and 
L  J  Hatton,  ^merchants  there.      Tlie  captain  entered  into  a  cliarter- 

party  with  Adams  and  Hatton,  to  proceed  from  thence  to  St.  Anne's,  and 
there  to  take  in  a  cargo  for  London.  After  unloading  the  greatest  part  of  the 
cargo  at  Montego  Bay,  and  remaining  there  a  month,  it  was  verbally  agreed 
that  the  remainder  of  the  cargo  (which  was  lumber)  should  be  carried  as  ballast  to 
St.  Anne\ — and  accordingly  the  vessel,  after  taking  in  some  fustic,  proceeded 
toward  St.  Anne^s,  but  was  wrecked,  and  never  arrived  there.     For  the  plain- 


(/>)  8  Scott,  N.  R.  3.     This  case  is  more  fully  mentioned  in  sec.  vii.  under  the  clause 
giving  lil)crty  to  touch,  stay,  &c.  jtost. 
(a)   1   W.  Black,  417. 

(Ij)  Sit.  after  Hil.  1782,  at  Guild.  Park  Ins.  74. 
(c)  Sit.  at  Guild,  after  Mich  T.  1795.  Park  Ins.  74. 


BEGINNING    THE    ADVENTURE,   ETC.  99 

tiff  it  was  urged,  thiit  in  such  an  insurance  the  ship  might  go  from  port  to  port; 
:ukI  that  at  all  events  the  goods  were  protected  by  the  poUcy,  till  they  were  all 
discharged  and  safely  landed.  Lord  Kenyan  was  clearly  of  opinion,  and  was 
confirmed  in  that  opinion  by  a  special  jury,  to  whom  his  lordship  particularly 
referred  on  this  occasion,  that  the  risk  on  the  ship  ceased  afler  she  had  been 
moored  at  anchor  twenty-four  hours  in  the  first  port  of  the  island,  for  the  pur- 
j)ose  of  unloading:  and  the  facts  disclosed  in  this  case  having  manifested  that 
Montego  Bay  was  also  the  original  destination  of  the  cargo,  and  that  its  not 
being  wholly  delivered  there  was  only  prevented  by  a  new  agreement,  the  loss 
of  the  goods  cannot  be  recovered  under  this  policy  of  insurance.  A  ship  inr 
sured  to  Jamaica  generally,  cannot  be  permitted  to  go  round  the  whole  island,^ 
from  port  to  port,  for  the  purpose  of  unloading  her  cargo,  especially  where,  as 
in  this  case,  the  owner  of  the  ship  and  goods  is  the  same  person.  The  plain- 
tiff was  nonsuited. 

In  the  case  of  Cruichshank  v.  Janson  (a)  it  Avas  held,  that  under  a  policy 
"at  and  from"  an  island,  a  ship  is  protected  in  going  from  port  to  port  in  the 
island.  So,  in  a  case  of  IVarre  v.  Miller,  (Jj)  which  was  an  action  on  a  policy 
of  "insurance  on  freight,  from  Grenada  io  London^''''  it  was  proved  that  there 
was  one  custom-house  only  for  the  whole  island  of  Grenada;  that  the  vessel 
arrived  in  safety  in  Grenada,  and  discharged  a  part  of  her  cargo  at  thi'ee  dif- 
ferent bays,  and  *she  was  proceeding  to  a  fourth,  to  discharge  the  p  si  on  i 
residue  of  her  outward  cargo  (the  captain  having  previously  made  L  J 

cng;igements  with  several  persons  for  the  homeward  cargo,  amounting  very 
nearly  to  a  full  cargo,)  when  she  was  lost  by  perils  of  the  sea.  It  was  held 
that  the  vessel,  at  tlie  time  of  the  loss,  was  proceeding  to  the  fourth  bay,  for  a 
purpose  connected  with  the  voyage  insured,  and  that  the  underwriter  was  liable. 

It  may  here  be  observed,  that,  although  in  the  previous  cases  of  Forbes  v. 
Cowie,  (a)  and  Forbes  v.  Aspinall,  {b)  it  was  decided  by  Lord  Ellenborough^ 
that  a  ship  could  not  be  said  to  be  ready  to  take  in  her  homeward  cargo,  whilst 
she  had  her  outward  cargo  on  board,  so  as  to  make  the  policy  on  the  freight  of 
.,  the  homeward  cargo  attach,  in  those  cases  the  outward  cargo  had  to  be  bartered 
I!  for  the  homeward  as  it  was  landed,  whereas  in  the  present  ease  the  captain  had 
entered  into  contracts  for  the  homeward  goods  before  starting  for  the  fourth  bay, 
and  his  sailing  round  the  island  was  in  the  course  of  his  preparing  to  take 
them  in. 

As  the  attaching  of  the  risk  frequently  depends  upon  a  ship's  arriving  at  or 
sailing  from  a  particular  port,  it  is  material  to  consider  what  it  is  that  properly 
constitutes  a  port,  in  construction  of  law. 

In  the  case  of  Constable  v.  Noble  (c)  it  was  held  that  a  policy  "at  and  from" 
;!  place,  for  instance,  from  Lyme  to  London,  which  not  only  designates  a  town 
but  a  port  also,  compreliending  a  large  district  of  coast :  so  that  Bridport,  which 
is  eight  miles  nearer  L^ondon  than  the  town  of  Lyme,  does  not  protect  a  cargo 
laden  any  where  within  the  limits  of  the  port,  such  as  Bridport,  but  must  be 
taken  to  refer  to  the  town  itself. 

Mansfield,  C.  J.  says  : — "If  the  plaintiff  in  this  case  could  have  proved  an 
usage  for  ships  to  load  at  Bridport,  upon  a  policy  'at  and  from  Lyme,''  it  might 
have  assisted  him,  but  no  such  usage  was  proved  here." 

*In  the  case  of  The  Sea  Lisurance  Company  of  Scotland  v.  r-  ^.,g.  -, 
Gavin,  (a)  where  a  brigantine  was  insured  "to  Barcelona,  and  L  -' 

from  thence  to  other  ports  in  Spain,  to  a  port  in  Great  Britain,^''  and  she  put 


(a)  2  Taunt.  301.  (6)  4  B.  «fe  C.  538. 

(a)  A7itc,  p.  166.  (6)  Ante,  pp.  161,  168,  174. 

(c)  2  Taunt.  403 ;  anil  see  Payne  v.  Hutchinson,  2  Tauiit.  405,  n. 

{a)  4  Bligh,  N.  S.  578.     2  Dow.  &  Clark,  125,  S.  C. 


100  BEGINNING    THE    ADVENTURE,  ETC. 

into  a  place,  situate  in  the  recess  of  a  bay,  having  a  custom-house  and  port- 
captain,  and  having  also  warehouses  and  a  jetty,  with  accommodation  for  small 
vessels  only,  there  being,  however,  convenient  anchorage  for  large  ones  in  the 
roadstead ;  and  the  ship,  having  been  lost  in  the  roadstead,  this  was  held  to  be 
a  port  within  the  meaning  of  the  policy. 

And  in  the  important  and  recent  case  of  Brown  and  others  v.  Tayleur,  (/;) 
in  which  the  meaning,  in  construction  of  law,  of  the  term  "port,"  was  fully 
discussed  by  the  Court  of  King's  Bench.  It  was  an  action  on  a  policy  of  insu- 
rance on  a  "ship,  at  and  from  her  port  of  lading  in  North  America  to  Liver- 
pooV  On  the  trial,  before  Lord  Benman,  C.  J.,  at  the  sittings  in  London, 
after  Trin,  Term,  1834,  it  appeared  that  the  ship  was  launched  at  Cocagne,  in 
the  province  of  New  Brunswick,  at  the  end  of  June,  1828;  that  a  kw  days 
after  she  was  afloat  she  began  to  take  in  her  cargo  of  timber  at  Cocagne,  and 
continued  to  do  so  for  three  weeks.  During  this  time  the  vessel  was  described 
as  lying  "in  the  stream,  inside  of  Cocagne  bar."  On  the  1st  August  she 
sailed  from  thence  for  Buktouche,  situate  five  or  seven  miles  distant,  to  com- 
plete her  loading.  She  arrived  there  in  a  few  hours.  Cocagne  and  Buktouche 
are  situate  in  different  creeks  of  the  same  bay.  Buktouche  is  not  in  the  line 
of  voyage  from  Cocagne  to  Liverpool.  The  vessel  lay  off  Buktouche  three 
weeks,  to  take  in  the  remainder  of  her  cargo ;  and  returned  to  Cocagne  on  the 
22nd  August,  to  receive  provisions,  and  get  ready  for  sea.  She  sailed  on  the 
31st  August,  and  was  lost  on  the  voyage,  Cocagne  was  described  by  the  wit- 
nesses as  a  "harbour"  and  "a  port,"  and  Buktouche  as  a  "port;"  but  neither 
r  *182  "1  ^^'^^  ^  custom-house,  though  there  were  officers  *of  the  customs  at 
•-  -^  both  places;  and  it  appeared  that  they  were  both  within  the  juris- 

diction of  the  custom-house  of  St.  Johii's,  Neiv  Brunsivick.  It  was  con- 
tended for  the  defendant  that  there  had  been  a  deviation;  and  the  Lord  Chief 
Justice  gave  the  defendant  leave  to  move  to  enter  a  nonsuit  on  this  objection. 
After  argument  at  the  Bar,  liord  Denman.  C.  J.,  said, — "I  think  the  rule  for 
a  nonsuit  must  be  made  absolute.  It  was  clear,  on  the  close  of  the  evidence 
for  the  plaintiffs,  that  Cocagne  and  Buktouche  were  two  distinct  places,  and 
two  places  at  each  of  which  there  might  be  a  loading." 

Patteson,  J. — "I  am  of  the  same  opinion.  We  cannot  construe  the  words 
'at  and  from  her  port  of  lading,'  as  if  they  were  'at  and  from  her  ports  :'  the 
expression  used  points  out  one  single  place.  Nor  can  we  adopt  the  technical 
meaning  to  be  ascribed  to  'port,'  as  signifying  all  that  is  subject  to  one  custom- 
house or  one  port  jurisdiction  ;  the  result  of  which  would  be,  that  a  ship,  under 
such  a  policy  as  this,  might  sail  to  every  port  of  a  district  so  situated.  The 
cases  which  explain  the  meaning  of  the  word  'port'  are  many,  (o)  Here  I 
tliink  that  '  port'  means  the  same  as  place,  and  that  the  vessel's  place  of  lading 
must  be  one  place.  When  she  once  began  to  take  in  her  cargo  at  Cocagne, 
that  was  her  place  of  lading,  and  her  removal  afterwards  was  a  deviation.  The 
cases  of  insurances  'at  and  from  Jamaica^  (referred  to  in  the  argument)  do  not 
apply.  If  the  policy  in  those  cases  had  said,  'at  and  from  her  port  of  lading 
in  Jamaica  or  Grenada,^  the  commencement  of  the  voyage  would  have  been 
restricted.  In  construing  the  word  'port'  as  the  place  of  lading,  I  do  not  mean 
to  say  that,  if  a  ship  were  at  a  particular  quay  on  a  river,  as  at  LJverpool,  and 
merely  moved  a  mile  or  two  off  to  another  quay,  that  would  be  a  deviation, 
because  the  vessel  would  then  bo  all  the  time  in  one  port  or  place ;  but  it  is  a 
deviation  if  she  removes  to  a  different  town,  a  different  place  of  habitation,  and 
a  point  which  might  itself  be  her  place  of  lading." 

(i)  9  A.  &E.  241. 

(a)  His  Lordship  referred  to  the  case  of  the  Sea  Insurance  Company  of  Scotland  v. 
Gavin,  ante,  p.  181. 


BEGINNING    THE    ADVENTURE,   ETC.  101 

*Mr.  J.  TVilliams  and  Mr.  J.  Coleridge,  concurred,  and  the  rule  j-  +ij^.^  -. 
for  the  nonsuit  was  made  absolute.  •-  J 

In  policies,  the  words  usually  employed  to  express  the  commencement  and 
end  of  tlie  risk  are  tliese  :-^"  Beginning;  the  adventure  upon  the  said  goods  and 
merchandises,  from  the  loading  thereof  on  board  the  said  ship,  and  so  shall 
continue  and  endure  until  the  said  ship,  with  the  said  goods,  be  arrived  at 

,  (her  port  of  delivery)  and  until  the  same  shall  be  discharged  and  safely 
landed."  But  this  clause  is  frequently  varied  by  the  agreement  of  the  parties; 
and  sometimes  the  risk  on  the  goods  is  made  to  commence  from  the  loading 
thereon  at  a  given  place,  in  which  the  policy  will  attach  only  upon  such  goods 
as  are  there  put  on  board,  and  not  on  goods  sliipped  elsewhere,  though  they 
are  the  very  goods  meant  to  be  insured,  and  were  on  board  at  the  place  speci- 
fied by  the  policy. 

This  was  fuUv  settled  in  the  case  of  Robertson  v.  French^  [a)  in  which  Lord 
Chief  Justice  Ellenborough  delivered  an  elaborate  judgment,  and  very  fully 
considered  the  rules  which  are  to  govern  the  construction  of  policies  of  insu- 
rance, and  the  effect  of  the  written  words  upon  the  usual  printed  form  of  this 
species  of  contract 

This  was  an  action  on  a  policy  of  insurance,  [b)  effected  by  the  plaintiffs  as 
agents,  "lost  or  lost  not,  at  and  from  all,  a^y^  (^^  every  port  and  place  roherc 
and  whatsoever  on  the  coast  of  Brazil,  and  after  the  \lth  day  of  September, 
to  the  Cape  of  Good  Hope,  upon  any  kind  of  goods  and  merchandises,  and 
also  upon  the  body,  &c.,  of  the  ship  Chesterfield,  &c. ;  beginning  the  adven- 
ture upon  the  said  goods  and  merchandises  from  the  loading  thereof  aboard  the 
said  ship,  at  all,  any,  or  every  port  and  place  ichere  and  ivhatsoevcr  on  the 
coast  of  Brazil,  and  from  the  17th  day  of  September,  1800,  and  upon  the 
said  ship,  &c.,  in  the  same  manner;  and  so  shall  continue  and  endure  during 
her  abode  there  upon  the  said  ship,  &c.,  and  further  until  the  said  ship,  &c., 
and  goods,  *&c.,  shall  be  arrived  at  Simon'' s  Bay  or  Table  Bay,  r-  ^104  -1 
both  or  either,  ivith  liberty  to  ccdl  at  St.  Helena,  or  elseichere,  L  J 

upon  the  said  ship,  &c. ,  and  upon  the  goods,  &c. ,  until  the  same  be  there  dis- 
charged, &c.  And  it  shall  be  lawful  for  the  said  ship,  &c.,  in  this  voyage  to 
proceed  and  sail  to  and  touch  and  stay  at  any  ports  or  places  whatsoever,  par- 
ticularly backwards  and  forwards,  and  to  and  from  those  under  the  Portu- 
guese Government,  or  any  port,  place,  island,  or  elsewhere  on  the  coast  of 
South  America,  tvifhout  being  deemed  any  deviation,  and  without  prejudice 
to  this  insurance.  The  said  ship,  &c.,  goods,  &c.,  valued  at  15,680/.,  being 
upon  goods,  ship,  and  freight,  separately  valued  as  tender.  And  in  case  of 
capture,  detention,  or  seizure,  by  any  power  tvhatever,  to  pay  a  total  loss 
tipon  receiving  documents  of  her  being  carried  into  port,  and  without  inquiry 
into  the  regularity  or  irregularity  of  her  proceedings ;  and  with  liberty  to 
sell,  barter,  exchange,  load  or  unload  the  interest,  in  part  or  whole,  at  the 
island  of  St.  Catharine,  or  elseichere,  where,  and  ivhatsoever.  Touching 
the  adventures  and  perils,  &c.  [This  part  of  the  policy  was  in  the  common 
form.]  At  the  rate  o(  four  guineas  per  cent.,  to  return  three  pounds  and  ten 
shillings  should  the  ship  have  arrived,  or  this  risk  otherwise  have  ceased,  on 
or  before  the  17//*  of  September.  In  witness,  &c."  At  the  bottom  of  the 
policy,  the  goods  were  valued  at  13,310/.;  ship  at  1,550/.;  and  freight  at 
814/.'  The  plaintiffs  declared  as  agents  of  Robertson  and  Walker,  upon  a  loss 
by  the  arrest  and  restraint  of  the  king's  ships.  And  at  the  trial  before  Lord 
Ellenborough,  C.  J.,  at  the  Sittings  after  Hilary  Term,  at  Guildhall,  it  was 


(a)  4  East,  130. 

\b)  The  words  in  italics  were  written,  the  rest  of  the  policy  set  out  was  in  the  usual 
printed  form. 


102  BEGINNING    THE    ADVENTURE,  ETC. 

admitted  that  the  goods  were  of  the  value  insured,  and  had  been  put  on  board 
the  ship  Chesterfield  at  the  Cape  of  Good  Hope.  Much  of  the  evidence  turned 
upon  the  question,  whether  the  object  of  the  voyage  were  to  trade  with  the 
Spanish  setdements  in  South  America;  Spain  being  then  at  war  with  this 
country?  or,  whether  it  were  only  in  contravention  of  the  trading  laws  o{  Por- 
tugal? But  nothing  turned  upon  that  point  in  the  case  as  presented  for  the 
consideration  of  this  Court. 

r  *18^  1  *'^  ^^  sufficient  to  state,  that  after  the  cargo  had  been  taken  in  at 
L  -J  the  Cape  of  Good  Hope,  the  ship  went  from  thence,  on  the  7th  of 

February,  1800,  to  Benguela,  on  the  coast  of  Africa,  and  afterwards  to  St. 
Catharine' s,  on  the  coast  of  Brazil,  on  the  30th  of  May;  then  to  Rio  Janeiro 
on  the  27th  ol'  Jidy:  staid  tliere  upwards  of  two  months,  and  remained  on  the 
coast  till  the  latter  end  of  November,  when,  on  suspicion  of  illicit  trading  with 
the  Spanish  enemy,  she  was  taken  possession  of  by  some  of  his  Majesty's 
ships  of  war,  and  carried  again  to  the  Cape,  with  the  original  cargo  on  board, 
where  she  was  libelled  by  the  captors  in  the  Vice  Admiralty  Court  tliere,  on 
which  the  assured  abandoned  to  tlie  underwriters ;  and  the  ship,  after  being 
liberated  by  the  sentence  of  the  Court,  was  sold  there,  and  has  since  arrived  in 
England,  about  October,  1802. 

Lord  Ellenborough,  C.  J.,  now  delivered  the  judgment  of  the  Court. 
"This  rule  was  moved  for,  secondly.  That  the  policy  on  this  ship  and  cargo 
never  attached ;  the  adventure  on  the  cargo  being  by  the  terms  of  the  policy 
made  to  commence  from  the  loading  the  goods  aboard  the  ship  on  the  coast  of 
Brazil;  an  event  which,  as  it  was  contended  by  the  defendant,  never  hap- 
pened, inasmuch  as  the  goods  were  not  loaded  there,  but  at  the  Cape  of  Good 
Hope.  And  it  was  also  contended  on  the  part  of  the  defendant,  that  the  adven- 
ture on  the  ship,  being  by  the  terms  of  the  policy  made  to  begin  in  the  same 
manner  with  that  on  the  goods,  could  of  course  have  no  commencement,  if  that 
on  the  goods  never  attached.  [After  stating  the  policy  as  before  mentioned, 
his  Lordship  proceeded.] 

"In  the  course  of  the  argument  it  seems  to  have  been  assumed  that  some 
peculiar  rules  of  construction  apply  to  the  terms  of  a  policy  of  assurance  which 
are  not  equally  applicable  to  the  terms  of  other  instruments  and  in  all  other 
cases  :  it  is  therefore  proper  to  state  upon  this  head,  that  the  same  rule  of  con- 
struction which  applies  to  all  other  instruments,  applies  equally  to  this  instru- 
ment of  a  policy  of  insurance,  viz  :  that  it  is  to  be  construed  according  to  its 
r  *18r  1  sense  and  ^meaning,  as  collected  in  the  first  place  from  the  terms 
L  J  used  in  it,  which  terms  are  themselves  to  be  understood  in  their 

plain,  ordinary,  and  popular  sense,  unless  they  have  generally  in  respect  to  the 
subject-matter,  as  by  the  known  usage  of  trade,  or  the  like,  acquired  a  peculiar 
sense  distinct  from  the  popular  sense  of  the  same  words ;  or  unless  the  context 
evidendy  points  out  that  they  must  in  the  particular  instance,  and  in  order  to 
effectuate  the  immediate  intention  of  the  parties  to  that  contract,  be  understood 
in  some  oUier  special  and  peculiar  sense.  The  only  difference  between  poli- 
cies of  assurance,  and  other  instruments  in  this  respect  is,  that  the  greater  part 
of  the  printed  language  of  them,  being  invariable  and  uniform,  has  acquired 
from  use  and  practice  a  kncnvn  and  deiinite  meaning,  and  tliat  the  words  super- 
added in  Avriting  (subject  indeed  always  to  be  governed  in  point  of  construction 
by  the  language  and  terms  widi  which  they  are  accompanied)  arc  entitled  never- 
theless, if  there  should  be  any  reasonal)le  doubt  upon  the  sense  and  meaning  of 
the  whole,  to  have  a  greater  clfect  attributed  to  th(Mn  than  to  the  printed  words, 
inasmuch  as  the  written  words  are  the  immediate  language  and  terms  selected 
by  the  parties  themselves  for  the  expression  of  their  meaning,  and  the  printed 
words  are  a  general  fornuila  adapted  e([ually  to  tlieir  case  and  that  of  all  other 
contracting  parties  upon  similar  occasions  and  subjects. 


BEGINNING    THE    ADVENTURE,   ETC.  103 

"As  to  the  second  point  made  in  tliis  case,  viz  :  tliat  the  policy  on  the  ship 
and  goods  never  attached  :  it  is  asserted  on  the  part  of  the  defendant,  that  the 
adventure  in  question  as  to  its  commencement,  accordino;  to  the  natural  and 
obvious  meanin;r  of  the  language  and  terms  of  tlie  policy,  depends  upon  and  is 
limited  by  the  co-existence  and  concurrence  of  three  several  circumstances,  viz  : 
one  of  place,  one  of  time^  and  one  of  event  or  fact.  And  first  of  place,  that 
it  is  to  attach  on  the  coast  of  Brazil:  secondly,  of  time,  that  it  should  attach 
there  after  the  17th  of  September:  and  thirdly,  of  event,  that  the  goods  should 
have  been  dicn  loaden  at  some  port  or  place  on  the  coast  of  Brazil.  The 
adventure  upon  the  ship  is  in  terms  declared  to  begin  "in  the  same  ^  ^.,g^  -, 
*manner,"  i.  e..  at  the  time,  and  i>lace,  and  after  the  happening  of  L  -' 

the  events  before  described  and  specified  in  respect  to  the  cargo.  But  it  is 
argued  on  the  part  of  the  plaintiffs,  that  the  latter  circumstance  of  event  or  fact, 
as  1  have  termed  it,  docs  not  alfect  the  commencement  of  this  adventure :  and 
that  the  words  'from  the  loading  thereof  aboard  the  said  ship,'  are  either  to  be 
rejected  wholly:  in  which  case  the  policy  will  stand  thus,  'beginning  the 
adventure  upon  the  said  goods  and  merchandises  at  all,  any,  or  every  port  and 
place  where  and  whatsoever  on  the  coast  of  Brazil'  without  regard  to  the 
place  at  which  such  goods  may  have  been  in  fact  antecedently  laden ;  or  that 
the  words  'from  the  loading  theieof  aboard  the  said  ship  'at,'  '  are  to  be  under- 
stood from  the  time  of  the  ship's  being  with  the  goods  laden  on  board  her,  or 
having  such  her  cargo  on  board  her,  at  the  place  mentioned  in  the  policy,  i.  e. , 
in  this  case,  at  the  coast  of  Brazil.  The  ol)jection  to  the  first  of  these  con- 
structions (besides  the  ditTiculty  of  wholly  rejecting  words  having  an  apparently 
significant  meaning,  and  referring  distinctly  to  an  act  to  be  done  at  a  given  place) 
is  stated  to  be  this,  that  if  the  cargo  insured  be  understood  to  be  generally  a 
cargo  at,  or  a  cargo  on  board  on  the  coast,  and  not  one  actually  and  originally 
taken  in  upon  the  coast,  the  policy  would  in  that  case  cover  the  risk  on  two 
successive  cargoes,  i.  c.,  on  the  outward  cargo  with  which  the  ship  shoidd  be 
in  a  loaded  state  on  the  coast  after  the  17th  of  September,  and  the  homeward, 
or  that  which  it  should  take  in  there ;  and  that  it  would  not  be  just  towards  the 
underwriter  so  to  construe  the  words,  as  to  cover  thereby  in  his  risk  two  suc- 
cessive cargoes,  when  one  original  cargo  only,  according  to  all  the  ordinary 
usages  of  trade  and  practice  of  insurance  as  applied  to  such  form  of  words 
must  1)6  understood  to  be  meant,  in  addition  to  the  liberty  of  sale,  barter,  and 
exchange,  given  by  a  subsequent  part  of  the  policy :  and  further  to  reject 
emphatical  words,  in  order  to  accomplish  a  construction  so  much  to  the  appa- 
rent disadvantage  of  the  underwriter.  And  indeed  if  only  one  original  cargo 
were  meant  to  be  covered,  a  Brazil  cargo  appears  to  have  the  best  r-  «igo  -i 
*claim  to  be  considered  as  that  one.     For  it  would  be  preposterous  L  J 

to  consider  the  policy  as  meant,  in  preference  to  any  other  one  cargo,  to  cover 
a  cargo  taken  in  at  the  Cape  of  Good  Hope,  and  which  should  remain  unpro- 
tected as  far  as  this  policy  is  concerned,  wherever  it  should  be,  till  the  17th  of 
September,  and  from  that  day,  if  it  were  then  on  the  coast  of  Brazil,  should 
be  protected  there,  and  during  the  course  of  barter,  sale,  and  exchange  at  the 
island  of  St.  Catharine  and  elsewhere,  and  during  its  reconveyance  afterwards 
back  to  the  Cape  from  which  it  had  originally  proceeded.  The  same  objection 
in  a  great  measure  applies  to  the  second  construction,  which  wiUiout  wholly 
rejecting  the  words  'from  the  loading  thereof  aboard  the  said  ship,'  considers 
the  goods  as  the  suliject  of  insurance  wlien,  after  the  17th  of  September,  they 
should  be  in  a  loaded  state  at  the  coast  of  Brazil :  for  this  construction  would 
equally  exclude  the  possibility  of  covering  by  this  policy  an  homeward  cargo 
taken  in  at  the  coast  of  Brazil  to  be  carried  to  the  Cape,  provided  the  ship 
should  have  arrived  on  the  coast  of  Brazil  with  an  original  cargo  on  board ; 
unless  indeed  two  successive  cargoes  could  be  covered  by  a  policy  conceived  in 


104  BEGINNING    THE    ADVENTURE,  ETC. 

these  terms.  But  the  most  natural  construction  of  the  words,  if  the  immediate 
letter  of  them  were  less  directly  applicable  to  a  cargo  taken  in  on  the  coast, 
seems  to  be  to  make  them  apply  to  a  cargo  to  be  carried  to  the  terminus  ad 
qiiem,  upon  and  within  the  immediate  limits  of  the  voyage  described  in  the 
policy,  rather  than  to  a  cargo  conveyed,  as  it  should  seem,  in  the  course  of 
useless  circuity  from  the  place  from  which  the  ship  originally  proceeded  before 
the  voyage  in  question  had  commenced ;  continuing,  except  inasmuch  as  it 
might  be  altered  by  barter,  sale,  and  exchange,  on  board  during  the  voyage, 
and  to  be  delivered  at  the  place  at  which  the  voyage  is  at  last  appointed  to  ter- 
minate. But  tlie  question  naturally  occurs,  is  there  any  thing  to  be  found  in 
the  policy  which  assigns  to  these  words  a  sense,  thus  apparently  diilerent  from 
the  ordinary  grammatical  sense  of  them }  And  looking,  as  we  are  obliged  to 
r  *isq  1  ^°'  ^^  ^^'^  policy,  and  to  tlie  policy  alone,  in  order  to  collect  the 
I-  J  ^intention  of  the  parties  as  to  the  commencement  and  duration  of 

the  adventure  thereby  protected,  we  cannot  feel  ourselves  at  liberty  to  disjoin 
in  point  of  effect  and  construction  the  words,  'at  all  or  any  port  or  place  on 
the  coast  of  Brazil,'  from  tbe  words,  'from  the  loading  thereof  aboard  the 
said  ship,'  by  which  they  are  immediately  preceded,  and  with  which  by  imme- 
diate context  they  appear  to  us  to  be  necessarily  united.     If  the  same  Avords 
had  not  been  thus  incorporated  with  the  body  of  the  text  of  the  printed  words, 
and  made  to  form  therewith  one  entire  and  continued  chain  of  words,  and  one 
unbroken  sentence  of  intelligible  expressions  all  applicable  to  the  same  suliject- 
matter,  it  might  perhaps  have  been  open  to  us  to  have  given  them  a  different 
meaning,  and  to  have  considered  them  as  words  written  in  the  margin  of  the 
policy,  (and  applying,  therefore,  indefinitely  to  the  whole  of  the  policy,  and 
not  to  any  particular  part  of  it)  are  usually  considered ;  that  is,  as  controlling 
the  sense  of  such  parts  of  the  printed  policy  to  wliich,  in  sound  construction, 
and  by  reasonable  reference,  they  may  appear  to  apply.     As,   for  instance, 
where  the  word  ship  is  written  in  the  margin  of  the  policy,  or  freight,  or 
goods:  in  such  case  tlie  general  term  of  the  policy,  applicable  to  other  subjects 
besides  the  particular  one  mentioned  in  the  margin,  are  thereby  considered  as 
narrowed  in  point  of  construction  to  that  one.     And  this  is  done  in  cases  where 
the  subject  meant  to  be  insured  is  still  more  remote  from  'ship  and  goods,'  the 
only  subjects  of  insurance  in  the  printed  policy,  viz :  where  the  object  of  the 
insurance,  as  declared  by  the  marginal  memorandum,  is,  money  lent  on  bot- 
tomry or  respondentia,  or  the  like :  the  meaning  of  which  marginal  memo- 
randmn  may  be  translated  thus : — We  mean  to  insure  the  subject  so  named, 
'•freight''  for  instance,  arising  and  accruing  during  the  limits  of  the  voyage 
within  described,  from  the  carriage  of  goods  on  board  the  ship  Avithin  men- 
tioned, against  the  perils  within  enumerated,   and  upon  the  premium  herein 
specified.     In  other  words,  we  adopt  die  general  language  of  the  policy,  as  far 
r    *iqn     ~i  ^s  *it  may  serve  to  effectuate  this  object,  and  no  further.      Had, 
L       *^"     J  indeed,  the  subject-matter  of  the  insurance  itself,  or  the  character, 
situation,  and  description  of  the  persons  making  it,  or  any  other  circumstance 
attending  the  insurance  pointed  out  and  required  a  narrow  rule  of  construction, 
the  ordinary  effect  of  these  words  might  perhaps  have  been  in  such  case  con- 
trolled :  but  can  any  such  restrictive  rule  of  construction  be  applied  to  the  words 
'at  all,  &c.,  ports  and  places  on  the  coast  of  Brazil,'  as  they  occur  here,  with- 
out shaking  the  fundamental  rules  of  construction  as  applicable  to  all  deeds  and 
instruments  whatsoever?     Feeling,  therefore,  the  impossibility  of  assigning  to 
these  words  any  oUier  pbu-e  in  or  with  rclcTence  to  this  contract  than  what  the 
parties  themselves  have  done,  and  feeling  the  impossibility  of  assigning  to  them 
in  that  place,  and  wiUi  die  context  which  attends  them,  any  other  meaning  than 
what  they  obviously  and  in  Uieir  plain  grammatical  sense  import,  we  are  obliged^ 
to  say  that  the  adventure  could  only  attach  on  goods  and  ship  after  a  loading  ol 


BEGINNING    THE    ADVENTURE,   ETC.  105 

goods  had  taken  place  on  the  coast  of  Brazil:  and  as  that  circumstance  or 
event  never  took  pUxce  in  the  present  instance,  that  the  policy  of  course  never 
attached  at  all.  It  certainly  was  in  the  contemplation  of  the  parties  that  the 
risk  meant  to  be  insured  might  have  ceased  before  the  17ih  of  September,  1800, 
and  a  return  of  premium  is  provided  in  that  event:  but  I  do  not  think  that  the 
construction  of  the  rest  of  the  policy  is  so  materially  aft'ected  by  this  stipulation 
as  to  require  any  particular  observations  upon  it.  Upon  the  whole,  we  are  of 
opinion  that  this  rule,  which  calls  on  the  plaintiff  to  shew  cause  why  the  ver- 
dict should  not  be  set  aside,  and  a  nonsuit  entered,  must  be  made  absolute." — 
Rule  absolute. 

The  subject  treated  of  in  the  preceding  case,  namely,  whether  a  policy  from 
A.  to  B.,  beginning  the  adventure  upon  the  said  goods,  from  the  loading  thereof 
aboard  the  said  ship  shall  cover  a  policy  for  goods  loaded  antecedently  to  the 
vessel  being  at  A.,  has  been  the  subject  of  much  discussion  from  the  time  of 
liOrd  Mansfield  to  the  present. 

*Ia  Hodgson  V.  Richardson,  [a)  the  case  was,  that  the  ship  was  r-  ^iqi  -i 
insured  at  and  from  Genoa,  (the  adventure  to  begin  from  the  load-  L  J 

ing  to  equip  for  this  voyage)  liable  to  average  :  her  loading  consisting  of  potash, 
verdigris,  and  cotton,  and  other  perishable  commodities.  This  loading  was 
put  on  board  at  Leghorn,  the  10th  August,  and  the  vessel  had  lain  at  Genoa 
about  five  months,  being  originaUy  bound  for  Dublin;  but  losing  her  convoy, 
she  put  into  Genoa  the  13th  August,  and  lay  there  till  the  5th  of  January, 
when  she  sailed.  The  insurance  was  made  on  the  20th  January,  at  which 
time  the  facts  were  known  to  the  assured,  but  not  communicated  to  the  under- 
writer. A  few  days  after  she  put  to  sea  she  was  shattered  by  a  storm,  and  the 
cargo  considerably  damaged.  The  assured  brought  his  action  on  the  policy; 
and  the  jury  found  a  verdict  for  the  plaintiff.  And  now  Morton  and  Dunning 
moved  (Eas.  Term,  4  Geo.  3,  K.  B.)  for  a  new  trial,  contending  that  the 
policy  was  bad  "ai  initio''''  for  want  of  a  due  disclosure  of  the  circumstances; 
as  Genoa,  from  the  wording  of  the  policy,  imported  to  be  the  port  of  loading : 
and  the  goods  were  liable  to  have  taken  damage  by  having  lain  so  long  aboard  : 
and  therefore,  although  the  present  loss  actually  happened  by  a  storm,  still  the 
policy  being  originally  bad,  the  assured  cannot  recover.  Lord  Mansfield,  C. 
J.  :  "-In  this  case  the  verdict  ought  not  to  stand.  The  question  is,  whether 
there  was  a  sufficient  disclosure,  i.  e.,  whether  the  fact  concealed  was  material 
to  the  risk  run.  This  is  a  matter  of  fact,  and,  if  material,  the  consequence  is 
matter  of  law  that  the  policy  is  bad.  Now  who  can  say,  that  no  risk  was  run 
during  the  five  months'  stay  at  Genoa,  or  no  damage  happened  in  that  period? 
The  policy  is  founded  upon  a  misrepresentation ;  the  ship  is  insured  at  and 
from  Genoa  to  Dublin,  the  adventure  to  begin  from  the  loading  to  equip  for 
this  voyage.  This  plainly  implies  that  Genoa  was  the  port  of  loading.  And 
at  the  trial  all  the  witnesses  said,  that  it  was  material  to  acquaint  the  under- 
writer whether  *the  insurance  was  to  be  at  the  commencement  or  r  *iqo  "i 
the  middle  of  the  voyage."     Wilmot,  J. — "The  fact  disclosed  by  L  -• 

this  policy  is  not  true,  viz  :  that  Genoa  is  the  loading  port,  for  so  it  must  be 
understood.  And  in  such  cases  I  will  not  speculate  on  the  materiality  or  imma- 
teriality of  the  fact.  Not  but  I  think  the  length  of  the  stay  at  Genoa  is  very 
material  in  the  case  of  such  perishable  commodities."  Rule  for  a  new  trial, 
absolute. 

In  the  case  of  Robertson  v.  French,  it  may  be  remembered  that  the  loading 
was  confined  to  a  particular  place,  beginning  the  adventure  upon  the  said  goods 
from  the  loading  thereof  aboard  the  said  ship  at  all,  any,  or  every  port  or  place 

{a)   1  W.  Black.  463. 


106  BEGINNING    THE    ADVENTURE,  ETC. 

where  or  whatsoever,  on  the  "coast  o^  Brazil  f  whereas  the  goods  were  not 
loaded  there,  but  at  the  Cape  of  Good  Hope.  In  the  case  of  Horny er  v. 
Lushington,  (h)  the  action  was  on  a  policy  of  insurance  at  and  from  Gotten- 
burg  toFiga,  or  any  ports  in  the  Baltic,  upon  "goods  and  ship  Jlmelia" 
beginning  the  adventure  upon  the  goods  from  the  loading  thereof  aboard  the  said 
ship  at  Gotfenburg.  The  declaration  averred  that  on  the  13th  September, 
1809,  the  ship  M'as  in  good  safety  at  Gottenbiirg,  and  that  the  cargo  in  the 
policy  and  memorandum  mentioned  was  of  great  value  :  and  that  afterwards  the 
ship,  with  the  cargo,  set  sail  from  Goltenburg,  and  arrived  at  Higa.,  where 
with  the  cargo  she  was  taken,  arrested,  and  detained  by  the  emporer  of  Russia, 
and  wholly  lost.  At  the  trial,  before  Lord  Ellenboroiigh,  C.  J.,  at  the  Lon- 
don s\i\\\\vs  ^hev 'Tv'm.  Term,  1811,  it  appeared  that  the  goods  insured  were 
laden  on  board  the  ship  in  the  port  of  London.  Lord  Ellenborovgh  directed 
the  jury  to  find  a  verdict  for  the  defendant,  reserving  leave  to  enter  the  verdict 
for  the  plaintiff'.  After  the  argument  upon  the  point  in  the  case,  on  the  subject 
of  our  present  inquiry.  Lord  EUenborough,  C.  J.,  said:  "When  this  ques- 
tion was  first  agitated^  T  had  a  difficulty  in  putting  the  construction  which  is 
r  ^'iQQ  1  "°^^  contended  for  upon  words  1  really  believe  bore  a  different 
L  ^^"^  J  ^construction  in  the  commercial  understanding  of  those  who  used 
them.  However,  the  Court  came  to  a  decision  on  the  point  in  the  case  of 
Bobcrtson  v.  French:  and  this  question  now  comes  before  us  after  the  case  of 
Spitta  V.  IVoodman.  (a)  It  is  therefore  no  longer  doubtful  what  construction 
is  to  be  put  upon  these  words.  It  is  to  be  considered  also  in  aid  of  such  con- 
struction, that  the  goods  may  have  been  damaged  in  their  transit  from  L^ondon 
to  Gottenbiirg,  which  might  cast  upon  the  underwriter  a  damage  occurring 
anterior  to  the  commencement  of  the  risk.  It  seems  to  me,  therefore,  that 
under  the  terms  of  this  policy,  the  risk  upon  these  goods  never  attached,  and 
there  must  be  a  proportional  return  of  premium."  Grose,  J.  concurred.  Bay- 
ley,  J. :  "In  De' Symonds  v.  Shedden,  (b)  the  Court  of  Common  Pleas  seems 
to  have  entertained  the  same  opinion."  And,  at  length,  both  in  the  Court  of 
King's  Bench,  and  in  the  Common  Pleas,  it  was  decided,  that  where  the  words 
of  the  policy  were  general  "at  and  from  a  place,"  and  the  adventure  on  the 
goods  to  begin  from  the  loading  thereof  on  board  the  ship,  (without  saying 
where)  as  in  Spitta  v.  Woodman,  (c)  and  Langhorn  v.  Hardy,  (d)  and  Mel- 
lish  V.  Jillnutt,  [c)  goods  loaded  on  board  before  the  arrival  at  the  place  named 
as  that  from  which  the  risk  is  to  commence,  will  not  be  protected. 

But  wherever  the  Court  can  collect  from  the  circumstances  of  the  case,  or 
from  tlie  words  used,  that  it  was  the  intention  of  the  parties  to  cover  such  ante- 
cedent loading,  they  will  give  the  policy  that  construction.  Thus  in  the  case 
of  Nonnen  v.  KettleivelU  (/)  which  was  an  insurance  on  sugar  free  of  particular 
average,  at  and  from  Landncrona  to  Wolgast,  the  underwriters  had  been 
informed  that  part  of  the  goods  had  been  shipped  on  board  the  same  vessel  some 
months  before,  at  Gottenbiirg.  Part  of  the  cargo  was  taken  out  of  the  ship's 
hold,  and  landed  on  the  quay,  and  replaced  in  the  ship.  A  sufficient  quantity 
^  was  taken  out  to  enable  *the  Custom-house  ofllicers  at  Landscrona 

L  ^'^'*  J  to  examine  the  whole  cargo  on  board,  the  duties  on  Avhich  were 
paid.  The  Court  held  this  to  be  an  actual  unloading  and  reloading  a  part,  and 
virtual  reloading  of  the  whole,  as  far  as  unloading  and  reloading  were  necessary 
for  the  purpose  of  ascertaining  and  paying  the  duties  at  Uiat  port,  which  accord- 


(/;;    15  East,  46,  ante,  p.  158.  (a)  2  Taunt.  416. 

{Ij)  2  Bos.  <St  Pull.  153.  (c)   2  Taunt.  416. 

(rf)  4  Taunt.  C28.  (e)  2  M.  &  S.   106. 
(/•)    16  East,  176. 


BEGINNING    THE    ADVENTURE,   ETC.  107 

inff  to  the  policy  is  to  be  regarded  as  the  loading  port.  So,  also,  in  the  case  of 
Bell  V.  Hobson,  (a)  where  a  policy  was  on  goods  at  and  from  Gottenbiirg,  to 
take  in  and  discharge  goods  wherever  the  ship  may  touch  at,  declared  it  to  be 
in  continuation  of  former  policies.  The  defendant  was  not  an  underwriter  on 
the  former  policies,  and  the  goods  insured  were  in  Aict  loaded  at  Virginia;  tlie 
Court  thought  this  memorandum  indicated  that  the  prior  loading  was  in  the  con- 
templation of  the  parties. 

And  in  the  case  of  Gladstone  v.  Clay,  {b)  where  the  word  "wheresoever" 
was  added  thus,  beginning  the  adventure  upon  tlie  said  goods  from  the  loading 
thereof  on  board  wheresoever,  the  Court  thought  this  word  sufficient  to  cover 
the  loading  wheresoever  it  should  take  place,  and  to  draw  the  case  out  of  the 
construction -put  on  former  cases,  and,  therefore,  where  goods  were  insured 
"at  and  from  Pernanibuco  to  iMaranham,  and  at  and  from  thence  to  Liver- 
pool from  the  loading  thereof  on  board  the  said  ship,  wlieresoever,  (fee."  the 
goods  were  loaded  at  Liverpool  to  be  delivered  and  sold  at  Fernambicco,  and 
the  ship  was  to  be  sent  back  to  London:  and  the  goods  were  sold  at  Per- 
nanibuco, except  twenty-six  cases,  which  were  sent  in  the  same  ship  to  be 
disposed  of  at  Maranham,  together  with  other  goods  to  be  carried  to  Marun- 
ham  and  thence  to  Liverpool  on  the  plaintiif's  account :  the  twenty-six  cases 
were  not  unloaded  but  remained  on  board  till  the  loss  which  happened  between 
Pernanibuco  and  Maranham:  it  was  held  that  the  policy  covered  the  twenty- 
six  cases. 

But  where  the  assured  have  by  the  express  terms  which  they  have  used  in  the 
policy  confined  the  risk  to  "the  "goods  from  the  loading  thereof"  ^  ^,g^  -. 
at  a  particular  place,  still,  although  there  may  be  reason  to  believe  L  J 

that  the  intention  of  the  assured  was  to  protect  the  goods  actually  on  board  at 
the  time  of  the  loss,  whether  belonging  to  the  outward  as  well  as  the  homeward 
voyage,  the  Court  will  not  feel  itself  at  liberty  to  give  effect  to  their  intention, 
but  in  the  construction  of  the  policy  it  will  be  guided  by  the  express  terms  they 
have  used. 

And  therefore,  in  the  case  of  Rickman  v.  Carsfairs,  (c)  where  a  ship  was 
bound  on  a  bartering  expedition,  and  an  insurance  was  made  on  goods  "be- 
ginning the  adventure  from  the  loading  thereof  on  board  the  said  ship  twenty- 
four  hours  after  her  arrival  on  the  coast  of  ^ric«,"  and  a  loss  took  place  when 
a  portion  of  the  goods  of  the  outward  voyage  was  on  board  and  a  considerable 
portion  of  the  homeward  not  shipped  at  the  time,  it  was  held  that  the  policy 
did  not  cover  that  portion  of  the  goods  of  the  outward  voyage  on  board  at  the 
time,  notwithstanding  by  a  memorandum  annexed  to  the  policy  the  insurance 
was  declared  to  be  on  the  cargo  valued  at  a  certain  sum,  and  that  the  part  of 
the  outward  cargo  then  remaining  on  board,  together  with  the  portion  already 
shipped,  made  up  the  valuation  in  die  policy,  and  that  the  policy  was  to  be 
opened  and  the  assured  was  to  recover  only  a  proportion  of  the  value  estimated 
on  the  part  of  the  homeward  cargo  shipped  at  the  time.  And  Lord  Denrnan, 
C.  J.,  delivering  the  judgment  of  the  Court  said,  "In  this  case  it  is  with 
regret  we  find  ourselves  obliged  to  come  to  the  conclusion  that  the  plaintiffs 
are  not  entitled  to  recover  for  a  total  loss ;  because  it  appears  very  likely  that 
the  assured  intended  by  this  policy  to  insure  both  the  outward  and  tlie  home- 
ward cargo,  and  to  have  valued  both  :  inasmuch  as  a  great  part  of  the  outward 
cargo  would,  in  such  a  voyage  remain  on  board,  and  w^ould  be  continually 
varying  in  the  course  of  barter,  and  nothing  is  more  probable  than  that  the 
entire  cargo  should  be  valued,  to  prevent  difiiculty  of  valuation,  in  tlie  case  of 


(a)   16  East,  240.   '  (i)   1  M.  &  S.  418. 

(c)  5  B.  &  Ad.  651. 


108  BEGINNING    THE    ADVENTURE,  ETC. 

r  *1Qfi  1  *'^  ''^^^'  Unfortunately,  howeA-er,  they  have  used  words,  which 
•-  J  will  not,  we  think,  effectuate  that  intention.     The  question  in  this 

and  other  cases  of  construction  of  written  instruments  is,  not  what  was  the 
intention  of  the  parties,  but  what  is  the  meaning  of  tlie  words  they  have  used. 
The  cases  of  Rohcrlson  v.  French.,  (a)  Spilla  v.  TVoodman,  (b)  Langhorne 
V.  Hardy,  (c)  and  others  have  established,  that  where  the  policy  is  upon  goods, 
"from  the  loading  thereof"  either  from  a  particular  place,  or  in  blank  upon  a 
voyage  from  one  place  to  another,  it  does  not  attach  upon  goods  previously  on 
board ;  but  this  being  a  strict  construction,  has  been  relaxed  when  there  was 
anything  on  the  face  of  the  instrument  to  satisfy  the  Court  that  the  policy  Avas 
intended  to  cover  goods  previously  on  board.  (</)  The  question  then  is,  Avhether 
there  is  any  thing  disclosed  upon  the  face  of  this  policy  by  which  the  Court  can 
be  convinced  that  it  was  intended  to  attach  upon  the  outward  cargo,  the  nature 
of  the  voyage,  of  which  the  underwriter  must  be  presumed  to  be  cognizant, 
being  also  taken  into  consideration? 

"The  only  circumstance  which  can  have  this  effect,  is  the  memorandum, 
which  declares  the  insurance  to  be  'on  the  cargo  valued  at  4800/.'  and  it 
occurred  at  one  time  to  a  part  of  the  Court  that  this  raised  a  presumption  that 
the  parties  contemplated  such  a  cargo  to  be  the  substance  of  the  insurance  as 
was  capable  of  being  valued  at  the  full  amount  insured  when  the  policy  attached, 
i.  e.  when  the  ship  had  arrived  twenty-four  hours  on  the  coast  of  Africa,  and 
that  the  entire  cargo,  consisting  of  outward  and  homeward  goods,  would  alone 
answer  that  description.  If  this  were  clearly  the  meaning  of  the  clause  we 
agree  that  we  might  reject  or  qualify  the  words  'from  the  loading  thereof  on 
board  the  ship,'  as  we  certainly  might  have  done,  if  it  had  been  said  expressly 
r  *iq7  ~i  ^'^  ^'^^  memorandum,  that  the  insurance  *was  on  the  cargo  both 
L  J  outward  and  homeward,  valued  at  4800/.      But  the  difficulty  is  to 

make  out  that  this  is  the  meaning  of  the  memorandum  in  question.  Suppose 
the  words  of  tlie  memorandum  had  been  'on  the  homeward  cargo'  valued  at 
the  same  sum,  would  there  have  been  any  inconsistency  in  making  such  a 
valuation,  and  would  the  fact  therefore  of  making  such  a  valuation  enable  the 
Court  to  say  that  the  word  homeward  must  be  rejected,  and  the  insurance 
applied  to  the  whole  of  the  goods  on  board  }  Or  suppose  that  in  the  earlier 
part  of  the  policy,  the  insurance  had  been  'upon  any  kind  of  goods  and  mer- 
chandizes, laden  on  board,  after  twenty-four  hours  after  arrival  on  the  coast 
o{  Jlfrica,''  would  the  valuation  by  the  memorandum  in  any  way  have  qualified 
or  varied  the  subject  of  insurance.^  If  it  would  not,  neither  can  it  in  the  pre- 
sent case;  for  the  declaration  in  the  policy,  that  the  adventure  is  to  begin 
'from  the  loading  thereof  on  board  twenty-four  hours  after  such  arrival'  is  in 
effect  the  same  thing,  and  confines  the  insurance  to  the  homeward  cargo." 

There  is  a  class  of  cases  which  may  properly  enough  be  mentioned  in  this 
place,  which  establish  a  well-known  principle  in  the  law  of  marine  insurance, 
and  which  we  shall  have  to  consider  further  in  the  next  section,  viz  :  that  the 
Courts  of  Law  have  always,  in  putting  a  construction  upon  policies,  been 
guided  by  the  custom  and  usage  of  trade. 

There  is  one  case,  which  has  already  been  referred  to,  of  this  description, 
viz  :  the  case  of  Pdly  v.  Royal  Exchange  Assurance  Company,  (a)  in  which 
it  was  decided  by  Lord  Mansfield,  that  where  the  rigging  and  tackle  of  a  ship 
were  put  on  shore,  during  a  repair,  in  a  Chinese  voyage,  in  the  usual  course 

(a)  4  East,  130.  {h)  2  Taunt.  416. 

(c)  4  Taunt.  G28. 

(f/)  As  in  Boll  V.  Hobson,  10  East,  260,  and  Gladstone  v.  Clay,  1  M.  &  S.  418. 

(a)    1  Burr.  341,  ante,  p.  137. 


BEGINNING    THK    ADVENTURE,  ETC.  109 

of  tliat  voyufjo,  niul  were  burnt  l)y  accident,  the  underwriters  were  held  hahle. 
The  reader  is  referred  to  Lord  MansfidiCa  judgment,  quoted  at  length  in  the 
former  part  of  this  Treatise,  (r/) 

In  another  instance,  of  Lcllndier'' h  case,  {b)  wliicli  \vas  an  *ac-  p  *ino  t 
tion  on   a   policy  of   insurance,    underwrote  by  the  defendant  at  L  J 

London,  by  which  a  ship  was  insured  from  thence  to  the  East  Indies,  war- 
ranted to  depart  with  (;onvoy,  the  declaration  showed  that  the  ship  went  from 
London  to  the  Downs,  and  from  thence  witli  convoy,  and  was  lost.  After  a 
frivolous  plea  and  demurrer,  the  case  stood  upon  the  declaration,  and  it  was 
objected  that  there  was  not  a  departure  without  convoy.  But,  by  the  Court, 
the  clause,  »' warranted  to  depart  with  convoy,"  must  be  construed  according 
to  the  usage  among  merchants,  that  is,  from  such  place  as  convoys  are  to  be 
liad,  as  the  Downs.  In  this  case  Lord  Chief  .Tustice  Holt  diflered  from  the 
rest  of  the  Court;  the  late  Mr.  J.  Park,  however,  says,  that  his  Lordship's 
opinion  is  certainly  contradicted  by  practice,  it  being  almost  the  invariable 
custom  for  the  convoy  to  meet  the  merchant  ships  only  in  the  Downs,  (a) 

In  the  cases  of  Gordon  v.  Morhy,  and  Ckiiupbell  v.  Bordieu,  [b)  on  an 
insurance  from  London  to  Gibraltar,  warranted  to  depart  with  convoy,  it 
appeared  that  there  was  a  convoy  appointed  for  that  trade  at  Spithead,  and  the 
ship  Ranger,  having  tried  for  convoy  in  the  Donms,  proceeded  to  Spithead, 
and  was  taken  in  her  way  thither.  The  assurers  insisted  that  this  being  the 
time  of  a  French  war,  the  ship  should  not  have  ventured  through  the  Channel, 
but  have  wailed  in  the  Downs  for  an  occasional  convoy ;  and  many  merchants 
and  otHce-keepers  were  examined  to  tliat  purpose.  But  the  Chief  .Justice  held, 
that  tlie  ship  was  to  be  considered  as  under  the  defendant's  insurance,  as  going 
to  a  place  of  general  rendezvous ;  and  if  the  parties  meant  to  vary  the  insu- 
rance from  what  is  commonly  understood,  they  should  have  particularized  her 
departure  with  convoy  from  the  Downs.  The  juries  were  composed  of  mer- 
chants, and  ill  both  cases  found  for  the  plaintifls,  upon  the  strength  of  this 
direction. 

So  in  the  ca$e  of  Bond  v.  Gonzales,  (c)  which  was  an  action  upon  a  policy 
of  insurance,  which  was  to  insure  the  JVilliam  galley,  in  a  voyage  from  Bre- 
men to  the  port  of  London,  ^warranted  to  depart  with  convoy,  r  ^^qq  -i 
The  case  was,  the  galley  set  sail  from  Bremen,  under  convoy  of  L  J 

a  Dutch  man-of-war,  to  the  Elbe,  where  they  were  joined  by  two  o{\\ev  Dutch 
men-of-war,  and  several  Dutch  and  English  merchant  ships,  whence  they 
sailed  to  the  Tcxel,  where  they  found  a  squadron  of  English  men-of-war, 
and  an  admiral.  After  a  stay  of  nine  weeks,  they  set  sail  from  the  Texel: 
the  galley  was  separated  in  a  storm,  taken  by  a  French  privateer,  and  retaken 
by  a  Dutch  privateer,  and  paid  eighty  pounds  salvage.  It  was  ruled  by  Holt, 
Chief  Justice,  that  the  voyage  ought  to  be  according  to  usage,  and  that  their 
going  to  the  Elbe,  though  out  of  the  way,  was  no  deviation ;  for  till  after  the 
year  1703,  (prior  to  which  time  this  policy  was  made)  there  was  no  convoy 
ibr  ships  directly  from  Bremen  to  LjOndon. — Verdict  for  the  plaintiff. 

The  case  of  Motteux  and  others  v.  The  Governor  and  Company  of  the 
I^ondon  Assurance  (a)  was  a  bill  filed  in  the  Court  of  Chancery,  whicii  stated 
that  the  ship  Ei/les,  late  in  the  East  India  Company's  service,  was,  in  the 
year  1732,  at  Bengal,  at  v/hich  time  the  owner  employed  I.  II.  to  insure  the 
ship  in  the  London  Assurance  Office  for  five  hundred  pounds.  The  adventure 
thereon  was  to  commence  from  her  arrival  at  Fort  Saint  George,  and  thence 


(n)  1  Burr.  341,  ante,  p.  137. 

(6)  2  Salkekl,  443 ;  and  see  Warwick  v.  Scott,  4  Camp.  62. 

(a)  Park  Ins.  S9.  (i)   2  Strange,  1265. 

(c)  2  Salk.  445.  (a)   1  Atk.  545. 


110  BEGINNING    THK    ADVENTURE,  ETC. 

to  continue  till  tlie  said  ship  should  arrive  in  London,  and  tiial  it  should  be 
lawful  for  the  said  ship,  in  the  said  voyage,  to  stay  at  any  ports  or  places 
without  prejudice,  and  that  the  ship  was  and  should  lie  rated  at  interest  or  no 
interest,  without  further  account :  in  consideration  wliereof  I.  II.  paid  fifteen 
pounds  premiuiii.  The  EijIps  came  to  Fort  Saint  George,  in  February,  1733, 
in  her  way  to  England;  Init  being  leaky,  and  in  a  very  bad  condition,  upon 
the  unanimous  advice  of  tlie  governor,  council,  commanders  of  ships,  &e.,  she 
sailed  to  Bengal  to  be  refitted,  and  after  being  sheathed,  in  her  return  u[)on  her 
homeward-bound  voyage,  she  struck  upon  the  Engilee  sands,  and  was  lost. 
1  Evidence  was  read  on  the  part  of  the  plaintiffs  *(o  prove  that  Ben- 
|_  -^^^  J  g^fi  ^^ras  tlie  most  proper  place  to  refit,  and  that  she  went  thither 
for  that  reason ;  tliat  this  was  a  voyage  of  necessity,  and  not  a  trading  voyage, 
for  she  took  nothing  on  board  but  water,  provision,  and  ballast. 

Lord  Chancellor  Hardnncke. — "As  to  the  question,  whether  there  has  been 
a  breach,  or,  in  other  terms,  a  loss,  within  the  meaning  of  this  policy .?  the 
general  principles  laid  down  by  the  plaintiff's  counsel  are  right :  that  stress  of 
weather,  and  the  danger  of  proceeding  on  a  voyage,  when  a  ship  is  in  a  decayed 
condition,  are  to  be  considered.  In  such  a  case,  if  she  went  to  the  nearest 
place,  I  should  consider  it  equally  the  same  as  if  she  had  been  repaired  at  the 
very  place  from  which  the  voyage  was  to  commence,  according  to  the  terms  of 
the  policy,  and  no  deviation.  It  is  a  very  material  circumstance,  that  the  gov- 
ernor ordered  the  lading  to  be  taken  out,  to  show  the  necessity  of  the  ship's 
being  repaired :  but  there  is  not  a  syllable  of  proof  why  she  might  not  have 
been  equally  well  repaired  at  Fort  St.  George.  There  is  one  part  of  this  case 
which  distinguishes  it  from  all  others  whatever,  and  that  is,  as  to  the  certain 
time  the  voyage  was  to  commence.  The  fact  is,  the  ship  was  lost  in  Jidy, 
1733,  three  weeks  before  the  time  of  making  this  policy,  so  that  clearly  the 
ship  was  not  at  Fort  St.  George  at  the  time  the  agreement  was  made  ;  and 
therefore  it  is  a  material  question  whether  it  comes  within  the  agreement." 
His  Lordship  directed  an  issue  to  try  whether  the  loss  in  Jtdi/,  1733,  was  a 
loss  during  the  voyage,  and  according  to  the  adventure  agreed  upon ;  which 
issue  was  afterwards  found  for  the  plaintiffs,  upon  a  trial  in  the  Common  Pleas. 

In  the  case  of  Tiernay  v.  Ethrington,  (a)  which  was  an  action  upon  a  policy 
of  insurance  "  on  goods  in  a  Dutch  ship,  from  Malaga  to  Gibraltar,  and  at 
and  from  thence  to  England  and  Holland,  both,  or  either :  on  goods,  as  here- 
under agreed,  beginning  the  adventure  from  the  loading,  and  to  continue  till  the 
"1  ^'^'P  ^"*'  goods  be  arrived  at  England  or  ^Holland,  and  these  safely 
L  '^"^  J  landed."  The  agreement  was,  ''that  upon  the  arrival  of  the  ship 
at  Gibraltar,  the  goods  might  be  unloaded,  and  reshipped  in  one  or  more  Bri- 
tiah  ship  or  sliips  for  England  and  Holland,  and  to  return  one  per  cent.,  if 
dischiu'ged  in  England.''''  It  appeared  in  evidence,  that  when  the  ship  came  to 
Gibraltar  the  goods  were  unloaded,  and  put  into  a  store-ship,  (which  it  was 
proved  was  always  considered  as  a  warehouse)  and  tliat  there  was  then  no 
British  ship  there.  Two  daj^s  after  the  goods  were  put  into  the  store-ship, 
they  were  lost  in  a  storm.  The  question  was,  whether  tliis  was  a  loss  within 
the  construction  of  the  policy  } 

Lee,  Chief  Justice. — "It  is  certain  that  in  the  construction  of  policies,  the 
sfrictwn  jus,  or  apex  juris,  is  not  to  be  laid  hold  of:  but  they  are  to  be  con- 
strued largely,  for  the  benefit  of  trade,  and  for  the  insured.  Now  it  seems  to 
be  a  strict  construction,  to  confine  the  insurance  only  to  the  unloading  and  re- 
shipping,  and  the  accidents  attending  that  act.  The  construction  should  be 
according  to  the  course  of  trade  in  this  place ;  and  this  appears  to  be  the  usual 

(o)   1  Burr.  348. 


BEGINNING    THK    ADVENTURE,   ETC.  Ill 

mode  of  unloading  and  re -shipping-  in  that  place,  viz:  tliat  when  there  is  no 
Ihillsh  ship  there,  then  the  goods  are  kept  in  store-ships.  Where  there  is  an 
insurance  on  g-oods  on  hoard  such  a  ship,  that  insurance  extends  to  the  carrying 
the  goods  to  shore  in  a  hoat.  So,  if  an  insurance  he  of  goods  to  such  a  citv, 
and  the  goods  are  brought  in  safety  to  such  a  port,  thougli  distant  from  the  city, 
that  is  a  compliance  with  the  policy,  if  that  be  the  usual  place  to  which  the 
ships  come.  Tlierefore,  as  here  is  a  liberty  given  of  unloading  and  re  ship- 
ping, it  must  be  taken  to  be  an  insuring  under  such  methods  as  are  proper  for 
uidoading  and  re-shijiping.  'I'here  is  no  neglect  on  the  part  of  the  insured,  for 
the  goods  were  brought  into  port  the  nineteenth  and  were  lost  on  the  twenty- 
second  of  November.  This  manner  of  unloading  and  re-shipping  is  to  be  con- 
sidered as  the  necessary  means  of  attaining  that  which  was  intended  by  the 
policy,  and  seems  to  be  the  same  as  if  it  had  happened  in  the  act  of  unshipping 
from  one  ship  into  anotl\er.  And  as  this  is  the  known  course  of  the  trade,  it 
seems  extraordinary  'if  it  was  not  intended.     This  is  not  to  be  p    ^  -, 

considered  as  a  suspension  of  the  policy ;  for  as  the  policy  would  L  '^^  J 
extend  td  a  loss  happening  in  the  unloading  and  re-shipping  from  one  ship  to 
another,  so  any  means  to  attain  that  end  come  within  the  meaning  of  the 
policy." 

The  plaintiff  had  a  verdict. 

Afterwards  a  new  trial  was  moved  for ;  but  it  was  refused  by  Lee,  Chief 
Justice,  Mr.  .Justice  Chappie^  and  Mr.  .Justice  Beiiison,  against  the  opinion  of 
Mr.  Justice  Wright,  (a) 

In  die  case  of  Bo/d  and  another  v.  Rofherham  and  others,  (b)  which  was 
an  action  on  a  policy  of  insurance  on  "goods  by  the  ship  Penan s;,  from  Liver- 
pool to  China."  At  the  time  of  making  the  policy,  the  relations  between  this 
country  and  China  were  in  a  disturbed  state,  and  the  policy  was,  therefore, 
drawn  up  in  a  mode  to  allow  every  facility  to  the  assured  to  look  out  and  wait 
for  a  market.  The  insurance  was  "on  goods"  by  the  ship  Penans;,  "at  and 
from  Liverpool  to  any  port  or  ports  in  the  Canton  Pivcr,  or  on  the  coast  of 
China,  including  Manilla,  with  leave  to  remain  at  an  out-port  until  she  could 
get  to  a  desired  porl,  with  leave  to  call  at  any  port  or  ports  for  instructions  or 
in  the  way  of  traffic."  The  ship  sailed  on  the  31st  October,  1840,  and  on 
January  25th,  being  then  in  the  Indian  Seas,  she  met  with  bad  weather,  was 
dismasted,  Uie  maintopsail-yard  coming  down  stove  a  hole  in  her  deck,  throuo-h 
which  she  shipped  a  quantity  of  water,  and  a  large  portion  of  the  caro-o  was 
consequently  damaged.  The  captain  thought  it  best  to  run  for  Singapore^ 
which  he  reached.  The  vessel  was  then  refitted,  but  the  cargo  was  not  taken 
out,  owing  to  the  heavy  duties  which  would  have  been  incurred.  The  Penang 
sailed  again  in  ^pril,  and  arrived  at  Macao  on  the  22nd  June.  On  that  day 
(xiptain  Elliott,  the  Plenipotentiary,  issued  a  notice  that  it  was  not  safe  for 
British  ships  to  remain  in  the  river,  antt  recommended  them  to  go  to  Hong 
Kong.  The  correspondents  of  the  owners  at  Canton  directed  the  captain  to 
proceed  thidier,  *and  sent  with  the  Panang  a  vessel  culled  The  ^    ^  -, 

James  J^ang,  which  was  to  be  used  as  a  receiving  ship,  and  into  L  '  "*  J 
which  the  cargo  was  to  be  transhipped,  for  the  purpose  of  ascertaining  the 
damage  and  preventing  further  deterioration  of  the  cargo.  The  two  vessels 
arrived  at  Hnng  Kong,  and  the  transhipment  was  proceeded  with.  The  crews 
were  engaged  in  transhipment  about  seven  days,  and  about  1,300  bales  out 
of  1,500  (the  cargo)  had  been  received  by  the  James  iMng,  when  the  latter 


(n)  Easter  Term,  1743. 

(h)  Tried  before  Lord  Denman,   C.  J.,  at   Liverpool  Summer  Assizes,    1842.      MSS. 
penes  me. 

Vol.  VII.— I 


112  BEGINNING   THE    ADVENTURE,  ETC. 

vessel  was  driven  on  shore  in  a  typhon,  was  totally  lost,  and  the  cargo  washed 
way  among-st  the  rocks.  On  behalf  of  the  assured,  it  was  contended  that  the 
goods  could  not  be  supposed  to  have  arrived  at  their  final  destination  by  the 
transhipment  at  Hong  Kong^  that  there  M'ere  no  warehouses  at  Hong  Kong, 
and  that  the  transhipment  was  merely  effected  for  the  purpose  of  ascertaining 
the  amount  of  damage,  and  for  preventing  a  further  deterioration.  It  was  ad- 
mitted that  there  was  no  intention  of  re-shipping  the  goods  into  the  Penang. 
His  Lordship  left  it  to  the  jury  to  say,  whether  they  were  of  opinion  that  the 
goods,  by  being  put  on  board  the  James  Lang  at  Hong  Kong^  under  the  cir- 
cumstances, were  to  be  considered  as  having  been  deposited  at  their  final  desti- 
nation as  completing  the  adventure,  so  far  as  the  Penang  was  concerned.  The 
jury  finally  found  a  verdict  for  the  plaintiffs,  (o) 

So  also  in  anotlier  case,  of  Noble  and  others  v.  Kennoicay,  (b)  the  same 
principles  were  adhered  to,  and  the  same  rule  of  decision  was  adopted.  The 
insurance  was  upon  the  ships  the  Hope  and  the  Anne,  at  and  from  Dartmouth 
to  Waterford,  and  from  thence  to  the  port  or  ports  of  discharge,  on  the  coast 
of  Labrador,  with  leave  to  touch  at  Newfoundland,  and  upon  any  kinds  of 
r  *9n<  1  goods  and  merchandises;  and  also  on  *the  ships,  till  they  should 
L  J  be  arrived  at  their  port  of  discliarge,  and  sliould  have  moored  at 

anchor  twenty-four  hours,  and  on  the  goods  until  the  same  shall  be  there  dis- 
charged, and  safely  landed.  By  a  clause  in  the  policy,  money  advanced  to  the 
fisherman  was  insured.  Tlie  Anne  arrived  safe  on  the  coast  of  Labrador  on 
the  22nd  of  Jime,  and  the  Hope  on  the  14th  of  Jidy,  1778.  From  the  time 
of  their  arri\  al,  the  crews  wei-e  employed  in  fishing,  and  had  taken  out  none 
of  their  cargoes,  except  at  leisure  hours,  (partly  on  Sundays)  such  things  as 
were  immediately  wanted.  On  the  13th  of  August,  an  American  privateer 
entered  the  liarbour,  and  took  both  die  vessels,  there  being  at  that  time  nobody 
on  board  either  of  them.  The  action  was  brought  to  recover  the  value  of  the 
goods.  The  defence  was,  that  thei-e  had  been  an  unnecessary  delay  in  unload- 
ing the  cargoes,  in  consequence  of  which  they  had  been  exposed  to  capture, 
and  that  the  underwriters  ought  not  to  be  liable  for  what  had  happened  from  the 
negligence  of  the  insured.  The  plaintiffs  rested  their  case  on  the  words  of  the 
policy,  and  the  usage  of  the  trade.  They  called  the  captain  of  the  Anne,  who 
swore  that  he  had  been  the  same  voyage  three  times  in  the  three  last  years,  and 
that  they  had  proceeded  in  the  same  manner  during  each  of  the  voyages ;  that 
he  did  not  think  the  plaintifl's  had  warehouses  sufficient  to  have  held  the  goods 
if  they  had  I)een  landed ;  and  that  there  M'ere  no  settlements  on  the  coast  of 
J^abrador,  but  those  belonging  to  the  plaintifls.  One  of  the  sailors  swore  to 
the  same  effect.  The  plaintiffs  then  called  one  French,  to  prove  the  custom  of 
the  Newfoundland  trade.  This  evidence  was  objected  to ;  but  Lord  Mans- 
field admitted  it,  and  tlie  witness  swore,  that  in  the  Newfoundland  trade  it 
is  customary  to  keep  their  goods  on  board  several  months,  and  that  sometimes 
ihey  have  part  of  their  liomeward  cargo  of  fish,  and  part  of  tlieir  old  cargo  on 
board,  at  the  same  time.  That  the  first  object  is  to  catch  fish,  and  they  unload 
only  at  times  when  they  cannot  fish.  Tlie  old  cargo  being  chiefly  salt  and 
provisions,  it  is  taken  out  gr.ulually  fi)r  curing  the  fish,  and  for  consumption. 
r  ^o(\^  ~l  '^'"^  testimony  of  this  witn(5ss  *was  confirmed  by  one  Newman. 
L      "'"^     J  Neither  Newman  nor  French  had  been  at  JAibrador.     Mr.  Hun- 


(«)  See  with  rcfcrcnrc  to  the  ahovc  case,  the  iminotliately  prccciliiig  case  of  Tiernay  v. 
Ethriucloii,  1  Burr.  348.  See  also  the  cases  of  PcIIy  v.  Koyal  Exchange  Company,  1 
Burr.  341,  unfe.,  p.  137.  And  likewise  the  case  of  Wapies  v.  Eames,  2  Strange,  1243, 
(wtf,  p.  157,  and  particularly  the  arguments  of  Lord  Mansfield,  in  Telly  v.  Royal  Ex- 
change Company,  and  of  C.  J.  Lee,  in  the  case  of  Tiernay  v.  Elhrington. 

(J))  Doug.  510. 


BEGINNING    THE    ADVENTURE,  ETC.  113 

ter  was  ihen  called,  who  proved,  that  some  years  since  he  used  to  send  vessels 
of  his  own,  and  also  chartered  vessels,  to  Labrador,  and  that  it  was  usual,  in 
chartering  vessels,  to  stipulate  that  they  should  have  sixty  days  allowed  for  dis- 
charging. That  he  apprehended  they  were  oftentimes  longer  in  fact,  and  that 
it  was  not  so  easy  to  discharge  a  cargo  at  Labrador  as  at  Neirfonndktnd. 
Upon  this  evidence  a  verdict  was  found  for  the  plaintiffs,  and  in  the  subsequent 
Term  the  defendant  moved  to  set  it  aside,  which  was  not  granted. 

Lord  Mansfield. — "The  trade  of  fishing  on  the  coast  of  Newfoundland^ 
especially  from  the  west  of  Ens;hind,  has  been  known  and  practiced  for  many 
years.  Since  the  treaty  of  Paris,  a  new  trade  has  been  opened  to  Labrador, 
The  insurance  here  is  on  the  ships,  and  on  the  goods  till  landed.  The  defend- 
ant says,  the  plaintiffs  have  been  guilty  of  an  unreasonable  delay  in  landing. 
That  question  was  to  be  tried  by  the  jury,  and  could  only  be  decided  by  know- 
ing the  usual  practice  of  the  trade.  Every  underwriter  is  presumed  to  be 
acquainted  witli  the  practice  of  the  trade  he  insures,  and  that  Avhcther  it  is 
recently  established  or  not.  If  he  does  not  know  it,  he  ought  to  inform  him- 
self. It  is  no  matter  if  the  usage  has  been  only  for  a  year.  This  trade  has 
existed,  and  has  been  conducted  in  the  same  manner  for  three  years.  It  is  well 
known  tliat  the  fishery  is  the  object  of  the  voyage,  and  the  same  sort  of  fishing 
is  carried  on  in  the  same  way  at  Neicfoundland.  I  still  think  the  evidence  on 
that  subject  was  properly  admitted,  to  shew  the  nature  of  the  trade.  The  point 
is  not  analogous  to  a  common  law  custom." 

So  in  a  case  of  Ougier  v.  Jennings,  (a)  before  Lord  Ehlon,  when  Chief 
Justice  of  the  Common  Pleas,  his  Lordship  allowed  the  usage  of  trade  to  pro- 
tect an  intermediate  voyage  to  Sidney  from  Newfoundland  in  ballast,  and  back 
with  a  *cargo  of  coals,  upon  an  insurance  on  fish  on  the  ship  p  ^ona  T 
Duchess  of  Gordon  at  and  from  Newfoundland  to  a  port  in  Portu-  L  -' 

gal.  The  ship  had  arrived  at  Neufoundland  in  Jidy,  she  then  proceeded  to 
Sidney  for  coals,  arrived  there  in  August,  and  delivered  her  coals  at  Newfound- 
land in  October ;  she  then  loaded  her  fish,  and  sailed  for  Oporto  in  November, 
and  was  lost.  The  underwriters  insisted  that  the  trip  to  Sidney  should  have 
been  communicated  to  the  underwriters,  as  it  tended,  by  retarding  the  commence- 
ment of  the  voyage  insured,  to  increase  the  risk.  The  plaintifT  relied  on  the 
usage  of  trade,  which  was  proved  by  several  witnesses. 

Lord  Eldon. — '"  I  think  the  practice  in  this  case  is  as  capable  of  being 
received,  as  in  other  cases,  in  which  it  has  been  admitted.  This  is  like  the 
case  of  the  ship  that  was  employed  on  the  Lyabrador  coast,  where  she  fished 
after  her  arrival,  and  before  her  outward  cargo  was  discharo-ed.  There  is  no 
doubt  that  the  policy  prinui  facie  means  the  first  cargo,  which  shall  be  laden 
after  the  ship's  arrival :  but  the  underwriter  must  refer  himself  to  the  usage  of 
the  trade,  which  he  is  bound  to  know.  The  first  question  is,  whether  there  be 
such  an  usage  .^  If  the  evidence  leads  to  this,  that  the  ship  may  make  an  inter- 
mediate voyage  of  several  years,  it  is  too  dangerous  for  you  (the  jury)  to  give 
it  effect.  If  several  ships  belonging  to  a  merchant  arrive  together  at  New- 
foundland, and  finding  cargoes  for  some  only,  he  bond  fide  sends  the  rest  on 
an  intermediate  voyage,  it  seems  reasonable ;  though  studiously  sending  a  ship 
on  an  intermediate  voyage  out  of  her  turn  would  be  a  deviation.  If  you  think 
the  usage  does  exist :  if  you  think  it  reasonable ;  and  if  you  think  this  ship 
acted  bona  fide  in  taking  the  intermediate  voyage,  you  will  find  for  the  plain- 
tiff."    The  jury  did  so,  and  the  verdict  was  not  impeached. 

So  in  tlie  case  of  J^allunce  v.  Dewar,  [a]  where  Lord  EUenborough  held, 
that  in  a  common  insurance  on  ship,  freight,  and  cargo,  at  and  from  any  port 

(a)  Sit.  in  C.  P.  1800,  1  Camp.  505,  note  (a) ;  and  see  Phillipps  v,  Irving,  8  Scott,  N. 
R.  3;  and  GHfe,  p.  117,  andjoos/.  (a)   1  Camp.  503. 


114  IT   SHALL    BE    LAWFUL    FOR   THE    SHIP,  ETC. 

r    *9n7     "1  ^^  ports  in  Neufoundlnnd,  *to  one  port  of  discharge  in  Portugal, 
L  -'  or  to  any  port  or  ports  in  the  United  Kingdom,  it  is  not  necessary 

to  communicate  to  the  underwriters,  that  before  that  risk  commences,  the  vessel 
will  be  employed  either  in  fishinor,  (called  bankins;)  or  in  an  intermediate  voy- 
age, for  the  usage  of  that  particular  trade  covers  it,  and  the  underwriters  are 
bound  to  know  the  nature  and  circumstances  of  the  trade,  to  which  their  policy 
relates.  His  Lordship  added,  the  assured  is  not  bound  to  make  a  laborious 
disclosure  of  what  is  known  to  all.  It  is  notorious  that  in  this  trade,  upon 
their  arrival,  ships  are  either  employed  in  banking,  or  take  an  intermediate 
voyage.  If  so,  it  must  be  presumed  to  be  equally  in  the  knowledge  of  both 
parties.  According  to  the  general  import  of  the  words  "-at  and  from,"  the 
policy  would  attach  upon  the  ship's  first  mooring  on  the  coast;  but  it  may 
doubdess  be  explained  differently  by  usage :  and  as  between  these  parties  the 
policy  must  be  taken  to  be  the  same,  as  if  it  had  been  expressed  to  attach  upon 
the  expiration  of  tlie  banking  or  intermediate  voyage.  Tlie  underwriters  were 
not  liaijle  for  any  antecedent  loss,  and  cannot  complain  of  what  was  previously 
done  as  a  deviation.  Altliough  there  should  be  exceptions  to  the  usage,  that 
would  be  immaterial.  Things  are  presumed  to  go  on  in  Uicir  ordinary  course; 
and  if  an  usage  be  general,  though  not  uniform,  the  underwriters  are  bound  to 
take  notice  of  it. 

So  the  same  learned  Judge,  in  the  case  of  Kingston  v.  Knohbs,  {a)  held, 
on  an  insurance  from  Oporto  to  London,  where  the  ship  having  taken  in  part 
of  her  cargo  within,  went  to  take  the  remainder  without  the  bar ;  and  where 
several  witnesses  proved  that  it  had  been  usual  to  do  so,  that  the  underwriters 
were  bound  of  themselves  to  take  notice  of  the  usage ;  although  it  appeared 
that  sometimes  in  policies,  express  liberty  was  given  to  load  on  either  side  of 
the  bar. 


[    *208    ]  ^SECTION  VII. 

IT   SHALL    BE    LAWFUL    FOR   THE    SHIP,   ETC.,   TO    TOUCH    AND    STAY,  ETC. 

The  head  of  this  section  includes  the  words  for  making  "it  lawful  for  the 
said  ship,  &c. ,  in  this  voyage,  to  proceed  and  sail  to,  and  touch  and  stay  at 
any  ports  or  places  wliatsoever — without  prejudice  to  this  insurance." 

This  liberty  to  touch  and  stay  at  different  parts  in  the  voyage  insured  is 
always  inserted  in  the  printed  policies,  and  generally  made  use  of  by  the 
assured's  filling  up  the  blank  space  as  it  suits  them.  This  clause  has  always 
been  used  witli  the  greatest  effect  in  voyages  to  the  East  Indies,  and  China, 
round  the  Capes,  and  to  the  islands  in  the  JVest  Indies,  as  well  as  to  the  con- 
tinents of  Jlrnerica;  and  some  care  and  precision  is  requisite  that  the  object  of 
the  voyage  is  well  attained,  by  the  terms  adopted  in  this  part  of  the  policy  by 
the  assured :  the  truth  of  which  wc  sliall  have  to  shew  in  many  cases  in  which 
this  clause  has  come  in  question.  Previous,  however,  to  our  giving  our  con- 
sideration to  the  many  recent  decisions  whicli  have  taken  place  in  our  Courts 
of  Law  upon  tliis  clause,  after  it  has,  l)y  the  great  increase  and  extension  of 
commerce  and  navigation,  i)een  almost  constandy  used  in  insurances  on  the 
long  and  important  voyages  to  all  parts  of  the  globe,  it  will  be  advisable  for  us 
to  turn  our  attention,  in  the  first  place,  to  tlie  earlier  decisions,  which  have  laid 


(a)   1  Camp.  508,  in  notia. 


IT    3HALL    BE    LAWFUL    FOR   THE    SHIP,  ETC.  115 

the  foundations  of  the  law  upon  this  subject,  on  which  the  recent  cases  in  a 
crreat  degree  depend ;  and  wiiich  legal  decisions  arose  out  of  the  immense 
trading  and  commercial  enterprise  which  followed  the  acquisition  of  our  now 
extensive  territories  in  the  East,  and  in  the  foundation  of  the  government  of 
the  East  India  Corfipany  there.  And  I  shall  quote  tlic  words  ol"  that  learned 
author,  the  late  Mr.  J.  Park,  who,  of  all  others,  had  the  best  ^  ,^  „„  -, 
opportunity  of  observing  the  ^effect  the  great  flow  of  mercantile  L  J 

speculation  towards  that  part  of  the  world,  had  upon  the  contract  now  under 
our  consideration ;  and  wliich,  under  the  talented  guidance  of  the  Judges  of 
that  period,  (particularly  under  the  masterly  hand  of  that  great  founder  of  insu- 
rance law.  Lord  Chief  Jiistice  Mans/iehL)  was  soon  converted  into  a  system 
which  constituted  one  of  tlie  greatest  assistance,  protection,  and  encouragement 
to  tlie  numerous  speculators,  who  embarked  their  property  on  bottoms  bound 
for  that  distant  and  hazardous  market. 

It  is  under  the  term  ''voyage"  in  this  clause,  that  the  law  which  was  created 
in  die  reign  of  his  late  Majesty  Geo.  3,  relating  to  the  '■'■East  Indian  voyages," 
and  what  were  called  the  "country  voyages,"  is  to  be  treated  of;  I  shall  com- 
mence however,  by  the  quotation  I  have  alluded  to,  from  the  learned  and  most 
excellent  treatise  of  the  late  Judge.  He  says, — "Although  the  decisions  in  all 
the  above  causes,  (a)  notwithstanding  the  vast  variety  of  circumstances  that  are 
to  be  found  in  them,  are  so  uniform  in  principle  ;  and  althoiigh  we  find,  that 
the  learned  Judges  make  a  constant  reference  to  the  usage  of  trade ;  yet  in  no 
instance  whatever  has  this  been  so  apparent  as  in  the  case  of  insurance  upon 
East  India  voyages,  in  which  the  insurers  have  been  held  liable,  not  only  for 
events  which  may  possibly  happen  from  the  port  of  discharge  to  that  of  deliv- 
ery ;  but  also  for  all  intermediate  or  country  voyages,  upon  which  the  ship  may 
be  despatched  by  the  order  of  the  council  of  any  of  the  East  India  Company^ s 
settlements  abroad." 

In  the  cases  of  Grant  v.  Paxton,  and  Grant  v.  Delacour.  (b)  f'hief  Jus- 
tice Mansfield,  after  stating  the  declaration  and  facts  in  the  first  of  these  cases, 
proceeded — "No  reason  was  given,  or  at  least  none  appeared  upon  the  evi- 
dence, why  the  Bruns7vick  did  not  proceed  direcdy  to  London,  and  why  the 
plaintiff  did  not  reship  his  own  goods  for  London  on  board  of  her.  The  fact 
only  was  proved  that  the  East  India  Company  *sent  the  Brims-  p  *210  "I 
ivich  to  Canton,  not  for  their  own  benefit,  but  the  plaintifi'  applied  L  -■ 

to  them  that  he  might  go  to  Canton  with  an  adventure  of  his  own,  and  permis- 
sioji  was  granted  him  upon  the  terms  that  the  Company  should  take  in  goods 
for  themselves  at  Canton,  but  that  they  should  pay  no  part  of  the  freight  on 
the  outward  voyage  from  Bombay  thither.  On  the  voyage  the  Brunswick 
was  taken.  The  plaintifi'  first  sued  Delacour  upon  a  policy  made  upon  the 
whole  voyage  out  and  home,  and  in  tliat  cause  an  argument  was  used  with 
considerable  eflfect,  that  the  Company,  who  had  been  very  indulgent  to  the 
plaintiff"  in  permitting  him  to  take  this  voyage,  would  probably  have  been  less 
so,  if  they  had  considered  the  consequence ;  for  they  would  raise  the  price  of 
insurance  against  themselves,  since  the  underwriters  would  not  hereafter  insure 
at  the  usual  premium,  a  voyage  which  might  by  the  favour  of  the  Company  to 
the  captain,  be  prolonged  beyond  the  full  end  of  the  twelve  months  next  after 
the  time  sufficient  for  the  voyage  which  was  first  contemplated.  But  it  was 
impossible  not  to  say  that  the  plaintiff'  must  recover  upon  that  policy.  The 
words  of  it  were  most  extensive.  It  was  on  goods  laden  in  London,  and  to 
continue  on  the  same  goods,  which  literally  taken  would  be  absurd,  for  the 
goods  are  taken  out  for  the  purpose  of  trading  and  barter,  not  to  be  brought 


(a)  Mentioned  at  the  close  of  sec.  vi.  (6)   1  Taunt.  463. 


116  IT    SHALL    BE    LAWFUL    FOR   THE    SHIP,  ETC. 

home  again  in  specie.  The  policy  was  "at  and  from  London^  to  all  ports  and 
places  on  this  side,  and  on  the  other  side  of  the  Cape  of  Good  Hope,  forwards 
and  backwards  at  sea,  at  all  times,  on  all  services,  and  in  all  ports  and  places, 
until  the  ship's  safe  arrival  back  again  at  her  last  station  at  BlachvaU  or  Dept- 
Jbrd,  upon  any  kind  of  goods  in  the  Brunswick,  beginning  the  adventure  upon 
the  said  goods  from  the  loading  thereof,  on  board  the  said  ship  at  London, 
including  the  risk  in  craft  from  the  ship  to  the  shore,  and  so  sliall  continue," 
&c.  The  Court  held  that  these  words,  though  literally  applying  only  to  the 
goods  laden  in  London,  must  be  intended  to  apply  to  any  goods  brought  back 
to  London,  though  they  were  not  the  same  goods.  Consequently,  under  that 
r  *91 1  1  P^^i^Ji  t'^6  captain  had  a  *right  to  trade  with  his  outfit  as  often  as 
L  J  he  would,  and  the  insurance  attached  upon  any  goods,  which  he 

might  acquire  in  the  course  of  his  dealing,  And  endeavour  to  brmg  back  to 
England. 

But  in  this  case  the  words  very  materially  differ.  The  policy  is  "upon 
goods  at  and  from  China  to  all  or  any  ports  or  places  whatsoever  and  where- 
soever in  the  East  Indies,  Persia,  or  elsewhere,  beyond  the  Cape  of  Good 
Hope,  in  port,  and  at  sea,  in  all  places,  at  all  times,  and  in  all  services,  until 
the  ship's  safe  arrival  in  London,  (not  at  the  last  place  of  discharge,  an  expres- 
sion which  was  relied  on,  in  the  former  case,  for  the  plaintiff,  as  indicating 
that  the  ship  was  to  discharge  her  cargo  more  than  once :)  beginning  the  adven- 
ture upon  the  said  goods  from  the  loading  thereof  on  board  the  said  ship  at 
China,  and  to  continue  until  the  said  ship  with  all  her  ordnance,  &c.,  and 
goods  and  merchandises  whatsoever,  should  be  arrived  at  London,  including 
the  risk  in  craft  from  the  ship  to  the  shore,  and  upon  the  goods  and  merchan- 
dises, until  they  should  be  discharged  and  safely  landed."  Taking  the  words 
of  this  policy,  nothing  can  be  clearer,  than  that  the  goods,  insured  by  it.  are 
the  goods  to  be  put  on  board  at  China,  and  not  elsewhere,  on  the  voyage  from 
China  to  London.  But  inasmuch  as  the  Company  may  employ  the  ship, 
while  under  their  hire,  in  any  service,  the  words  "to  all  or  any  places,  in  and 
at  sea,  in  all  places,  at  all  times,  and  all  services,"  are  inserted  to  the  intent, 
that  although  the  ship  should  be  used  as  a  ship  of  war,  or  in  whatsoever  em- 
ployment she  might  be,  or  whithersoever  the  Company  should  send  her,  still 
the  policy  should  cover  these  goods.  The  Company,  it  is  true,  send  back  the 
Brunswick  on  another  voyage,  but  this  circumstance  does  not  alter  the  words 
of  the  policy,  or  enlarge  the  insurance.  It  might  alter  the  effect  of  the  policy, 
if  there  were  any  custom  of  tlie  trade  to  warrant  it;  but  not  only  none  such  is 
foimd,  but  it  is  disaffirmed  by  the  circumstances  of  this  case,  which  shew  that 
the  turning  out  of  these  goods  at  Bombay  was  owing  to  the  interposition  of  an 
r  *919  1  extraordinary  accident.  It  never  was  *in  the  contemplation  of  the 
L  J  underwriters,  or  of  any  man,  that  a  ship  once  laden  with  tea,  a 

very  valuable  cargo,  would  be  unloaded,  and  employed  in  war,  or  some  other 
trade.  If,  then,  there  is  no  custom  of  the  trade,  there  is  notliing  to  alter  the 
plain,  fair,  grammatical  sense  of  tlie  words.  In  the  other  policy,  the  words 
"backwards  and  forwards  at  sea"  had  considerable  force.  The  plaintiff's 
counsel  in  this  case  contended  that  according  to  a  dictum  of  Lord  Mansfield, 
those  words  meant  only  from  Europe  to  Asia,  and  from  Asia  to  Europe. 
But  this  is  a  most  unnatural  interpretation:  the  words  "backwards  and  for- 
wards at  sea"  must  mean  from  port  to  j)ort.  It  was  said  by  Lord  Mansfield, 
in  the  case  of  Gregory  v.  Christie  [a)  "  that  since  the  practice  had  ceased  of 
insuring  the  outward  and  homeward  voyage  in  one  policy,  the  words  "back- 
wards and  forwards"  had  ceased  to  be  inserted,  but  in  the  case  of  Salvador  v. 


(a)  B.  R.  Trin.  24  Geo,  3, 


IT  SHALL  BE  LAWFUL  FOR  THE  SHIP,  ETC.  117 

Hopkins^  (b)  the  insurance  was  "at  and  from  Bengal  to  any  ports  or  places 
where  and  whatsoever  in  i\\c  East  Indies,  China,  Persia,  or  elsewhere,  beyond 
the  Cape  of  Good  Hope,  forwards  and  backwards,  and  during  her  stay  at  each 
place,  until  her  arrival  at  London.''''  There  the  words  must  have  had  the 
meaning  attributed  to  them  in  Grant  v.  Delacour,  that  is  from  port  to  port, 
not  from  Europe  to  Jlsia. 

This  discussion  no  further  concerns  the  present  question,  than  to  shew  that 
the  case  of  Grant  v.  Delacour  does  not  govern  this.  The  distinction  between 
them  is  that  there,  by  necessary  construction,  all  the  goods  which  might  be 
acquired  by  trading  in  the  course  of  the  voyage  were  protected  by  the  policy : 
in  this  case  the  insurance  is  on  nothing  but  the  goods  laden  in  China,  and  is  to 
continue  on  them  till  the  arrival  of  those  goods  at  London.  On  the  true  con- 
struction of  this  instrument,  therefore,  we  must  pronounce  that  the  voyage  from 
Bombay  to  China  was  not  within  the  meaning  of  the  policy,  nor  the  lost  goods 
covered  by  this  insurance." 

Mr.  Justice  Park  thus  proceeds  in  the  passage  I  began  to  *quote :  p  *oi  q  i 
"It  is  not  that,  in  these  cases,  the  Judges  have  given  a  greater  L  J 

latitude  to  the  usage  of  trade,  than  in  any  other;  but  because,  from  the  great 
variety  of  cases  that  have  arisen  upon  the  subject,  the  usage  with  regard  to 
the  East  Lidia  voyage  is  more  notorious  and  better  established  than  in  those 
where  the  question  has  but  seldom  occurred.  The  grounds  and  reasons  of  such 
decisions  seem  to  have  been  the  terms  in  which  all  the  printed  charter-parties 
of  the  East  India  Company  are  conceived.  By  those  charter-parties,  liberty 
is  given  to  prolong  the  ship's  stay  for  a  year ;  besides  which,  it  is  very  com- 
mon, by  a  new  agreement,  to  detain  her  a  year  longer ;  and  the  longer  a  ship 
is  kept  it  is  the  more  beneficial  to  the  owners.  The  words  of  the  policy,  too, 
are  adopted  to  this  usage,  being  without  limitation  of  time  or  place,  and  without 
any  reference  to  the  first  voyage  particularly  mentioned  in  the  charter-party. 
These  charter-parties,  being  printed,  are  matter  of  public  notoriety ;  and  are 
so  generally  and  universally  known,  or  may  be  so,  by  an  inquiry  at  the  India 
House,  that  the  chance  of  her  stay  is  always  one  of  the  risks  insured  :  and  both 
the  insured  and  insurer  must  be  supposed  to  be  fully  apprised  and  sufficiently 
conusant  of  it.  Indeed,  the  understanding  of  the  policy  depends  so  much  on 
the  course  and  usage  of  the  East  India  trade,  that  it  seems  to  be  contradictory 
to  the  policy  to  say,  that  the  underwriter  did  not  underwrite  for  a  country 
voyage. 

"All  these  principles  were  fully  laid  down  by  Lord  Mansfield  in  a  very  few 
years  after  he  took  upon  him  the  administration  of  justice  in  this  country;  and 
they  have  been  frequently  recognized,  and  invariably  pursued  in  a  multitude  of 
decisions  upon  such  policies  since  that  time.  The  learned  Chief  Justice, 
when  he  laid  down  these  rules  as  the  ground  of  his  then  opinion,  and  as  the 
guide  of  future  decisions,  said  he  did  so,  because  the  Court  esteemed  this  to  be 
the  most  convenient  way  of  determining  the  question ;  for  whoever  should  there- 
after insure  on  an  East  India  ship  would  know,  that  he  insured  the  contingen- 
cies, and  might  take  proper  precautions  against  them  if  he  pleased.  Whereas 
if  every  person  should  *be  obliged  to  open  to  the  insurer  all  the  p  *o|4.  "i 
grounds  of  his  expectation  about  the  ship's  continuance  in  the  East  L  J 

Indies,  or  coming  to  England,  it  might  produce  great  litigation  and  confusion 
in  cases  arising  upon  these  policies." 

The  cases,  in  which  these  principles  as  to  East  India  voyages  were  first 
settled,  Salvador  v.  Hopkins,  (a)  were  the  nine  causes  tried  upon  the  ship 
Winchelsea  an  East  Indiaman;  in  all  of  which  the  policies  were  the  same, 


(Jb)  3  Burr.  1707.  (a)  3  Burr.  1707. 


118  IT    SHALL    BE    LAWFUL    FOR   THE    SHIP,  ETC. 

the  parties  only  being  different;  and  all  of  which  were  at  first  tried  with  various 
success ;  but  the  nine  verdicts  were  ultimately  uniform  for  the  plaintifls,  the 
assured,  against  the  underwriters. 

The  charter-party  was  in  the  usual  printed  form,  and  contained  a  clause, 
empowering  the  Company's  servants  abroad  to  detain  the  ship  a  year  longer, 
if  they  pleased,  than  the  time  originally  limited  by  charter-party.  The  insu- 
rance was  in  these  words,  "at  and  from  Bengal,  to  any  ports  or  places  what- 
soever in  the  East  Indies,  China,  Persia,  or  elsewhere,  beyond  the  Cape  of 
Good  Hope,  forwards  and  backwards,  and  during  her  stay  at  each  place  until 
her  arrival  at  London,  on  money,"  &c.  On  the  25th  of  March.  176^,  the  ship 
sailed;  on  the  19th  of  September,  in  the  same  year,  she  arrived  at  Bombay: 
and  early  in  the  November  following,  she  left  Bombay  the  first  time.  The 
ship  arrived  at  Calcutta,  in  Bengal^  on  the  5th  of  March,  1763;  and  on  the 
twenty-eighth  of  the  same  monthly  the  president  and  council  of  Bengal,  entered 
into  a' new  agreement  with  the  captain,  reciting  that  the  charter-party  would 
expire  on  the  11th  o'i  February,  1764,  but  that  the  president  and  council,  find- 
ing it  expedient  to  detain  the  ship  in  India,  and  being  desirous  of  having  the 
time  limited  in  the  charter-party  prolonged,  &;c.,  the  indenture  therefore  wit- 
iiesseth,  that  the  captain  lets  the  ship  to  freight  for  one  whole  year  from  the  said 
11th  o{  February,  1764.  The  ship  arrived  at  Bombay  a  second  time  in  July, 
1763 :  in  December  following,  she  again  sailed  for  Bengal,  and  arrived  there 
^^  -,  early  in  1764  ;  on  the  19th  of  March  in  *that  year  she  left  Bengal, 
L  J  in  order  to  proceed  for  Bombay,  and  on  the  twenty-first  of  that 

month,  subsequent  to  the  expiration  of  the  old  charter-party,  the  ship  was  lost. 
On  the  third  oi  Jlpril,  1764,  Mr.  Hume,  the  plaintiff  in  several  of  these  actions, 
received  a  letter  from  the  captain,  dated  the  14th  of  Jipril,  MQ'd,  inclosing  a 
copy  of  the  new  agreement ;  which  letter  was  publicly  read  in  a  coffee-house. 
The  next  day  after  the  receipt  of  the  letter,  some  insurances  were  made  by  Mr. 
Hume.  On  the  17th  of  July,  1764,  other  insurances  were  effected  by  Mr. 
Hume,  and  all  the  other  insurances  were  made,  after  the  captain's  letter  of  the 
14th  of  Jlpril,  1763,  had  been  received  and  publicly  read  in  a  coffee-house. 
The  Court,  after  laying  down  all  those  principles  above  stated  respecting  the 
notorious  usage  of  this  branch  of  trade,  enlarged  upon  the  circumstances  pecu- 
liarly distinguishing  these  causes.  "No  mention  was  made,  or  question  asked, 
at  the  time  of  underwriting,  when  the  ship  was  chartered,  when  she  sailed 
from  England,  when  siie  arrived  in  India,  whether  she  was  detained  a  year, 
according  to  the  proviso  in  the  charter-party  :  and  yet  her  continuance  in  the 
East  Iridies  depended  upon  all  these  facts.  If  they  ought  necessarily  to  be  dis- 
closed, the  policy  was  void,  to  the  knowledge  of  the  underwriters,  at  the  time 
they  took  the  premium.  The  evidence  in  all  the  causes  was  very  strong,^  and 
her  staying  a  year  longer,  if  known,  would  not  have  varied  the  premium.  This 
ship  was  insured  at  the  same  premium,  after  the  prolongation  of  her  stay  in 
India  was  known.  None  of  the  defendants  desired  to  be  off.  after  they  knew 
that  an  account  of  the  new  agreement  had  been  received  in  England,  upon  the 
3d  of  Jipril,  1764,  which  was  notorious  to  them  all,  before  the  intelligence  of 
her  loss,  wliich  came  in  the  October  following.  So  that  if  there  had  been  any 
force  in  the  objection;  it  would  have  been  waived  by  the  acquiescence  of  the 
underwriters,  after  they  were  fully  apprized  of  the  whole." 

So,  also,  in  the  ease  of  (iregory  v.  Christie,  {a)  in  an  action  upon  a  policy 

"on  the  goods,  specie,  and  effects  of  the  *plaintiff,  on  lioard  the 

L      216     J  gj^jp  yjj  ii^j.  yoyage  from   London  to  Madras  and   China,  with 

liberty  to  touch,  stay,  and  trade  at  any  ports  or  places  whatsoever,"  a  similar 


(a)  R.  R.  Trin.  24,  Geo.  3.     Park  Ins.  104. 


IT  SHALL  BE  LAWFUL  FOR  THE  SHIP,  ETC.  119 

question  arose  upon  the  following  facts.  When  the  ship  arrived  at  Madras, 
she  was  too  late  to  go  to  China  tlial  year  ;  upon  which  she  was  employed  by 
the  council  there  to  go  from  MadraH  to  Bcrifj^al  to  fetch  rice,  which  voyage 
she  performed  once,  and,  in  attempting  to  perform  it  a  second  lime,  was  lost. 
The  jury  found  a  verdict  for  the  plaintiff. 

A  new  trial  was  aftcu'wards  moved  for  on  two  grounds,  one  of  which  only 
is  material  here,  that  these  intermediate  voyages  were  not  insured  under  the 
policy;  for  that  the  words  "to  touch,  stay,  and  trade  at  any  ports  or  places 
whatsoever,"  only  meant  to  give  a  license  to  stay  at  such  places  as  it  should 
be  necessary  to  stop  at  in  the  course  of  the  voyage. 

Lord  Mamfield. — "To  understand  this  policy  you  must  refer  to  the  course 
of  trade  to  which  it  relates.  What  is  the  course  of  trade  with  the  East  India 
Company?  If  an  India  ship  come  to  Madras  too  late  in  the  season  to  pro- 
ceed to  China,  the  council  employs  her  in  an  intermediate  voyage.  It  is 
beneficial  to  all  parlies  so  to  employ  her;  the  underwriters  are  perfecdy  well 
acquainted  witli  tliis  usage,  and  are  bound  to  take  notice  of  it.  Before  the 
year  1780  it  was  usual  to  insure  both  the  outward  and  homeward  bound  voyage 
in  one  policy,  and  then  the  words  "backwards  and  forwards"  were  inserted; 
but  since  that  time  they  have  separated  the  insurance,  and  insure  the  outward 
voyage  in  a  distinct  policy.  The  policy  in  question  differs  from  others,  because 
it  contains  a  permission  to  trade,  as  well  as  to  touch  and  stay,  at  any  ports  or 
places,  which  is  not  usual  in  policies  of  this  nature :  for  in  general  they  only 
permit  them  to  touch  and  stay,  which  words  can  only  be  intended  to  give  a 
permission  so  to  do,  if  necessity  oblige  them ;  but  to  touch,  stay,  and  trade 
are  words  so  large,  that  they  seem  to  include  the  intermediate  voyage.  It 
would  narrow  the  construction  very  much,  indeed,  to  say,  that  the  policy 
relates  to  those  places  only  at  which  they  shall  stop  in  the  voyage.  The  words 
made  use  of  ^certainly  take  in  the  intermediate  voyage,  and  the  p  ii;oi7  -i 
usage  of  trade  confirms  this  construction."     The  consequence  of  L  J 

this  opinion  was  that  the  verdict  of  the  jury  was  held  to  be  right. 

So  also  in  Farqr(harson  v.  Hunter,  {a)  an  action  on  a  policy  of  insurance 
upon  tlie  ship  Bhindford,  "at  and  from  London  to  Madras  and  Bengal, 
beginning  the  risk  upon  the  said  ship,  &c.,  at  London,  and  so  to  continue 
till  the  arrival  of  the  said  ship  at  Madras  and  Bengal,  with  liberty  to  touch 
and  stay  at  any  port  or  place  in  this  voyage."  Tlie  facts  were  these — the 
Blandford  arrived  at  Madras,  where  her  cargo  was  unloaded  by  order  of  the 
presidency ;  she  was  then  sent  for  rice  to  Visagipatnam,  and,  by  an  entry  in 
the  council-book,  her  voyage  to  Bengal  is  said  to  be  postponed.  That  part  of 
her  outward-bound  cargo  which  was  intended  for  Bengal  was  sent  thither  in 
the  Lord  Mulgrave,  and  afterwards  the  Blandford  was  sent  to  Bengal  in 
ballast,  and  was  taken  in  the  passage ;  for  which  loss  this  action  was  brought. 
At  the  trial,  Lord  Mansfield  thought  the  words  in  the  policy  would  not  admit 
of  such  a  latitude  of  construction  so  as  to  take  in  the  intermediate  voyage,  the 
words  being  much  narrower  than  those  in  Gregory  v.  Christie;  upon  which 
the  plaintiff  was  nonsuited. 

However,  in  the  following  Term,  when  a  motion  was  made  to  set  aside  the 
nonsuit,  his  Lordship  said, — "This  is  a  policy  on  the  ship;  it  is  an  India 
voyage ;  and  the  usage  as  to  the  intermediate  voyages  is  notorious  to  both  par- 
ties; and  the  contract  refers  to  it.  The  insurance  here  is  from  London  to 
Madras  and  Bengal.  What  is  the  usage  of  the  trade  ?  That  when  the  ships 
arrive  at  Madras  the  council  may  send  them  elsewhere."  The  other  Judges 
concurred,  and  the  rule  for  setting  aside  the  nonsuit  was  made  absolute. 


(a)  R.  R.  Hilary,  25  Geo.  3.     Parks  Ins.  105. 


120  IT   SHALL    BE    LAWFUL    FOR   THE    SHIP,  ETC. 

But  the  clause  g-ivinw  liberty  "to  touch,  stay,  trade,"  &c.,  is  to  be  under- 
stood with  such  restrictions  as  the  Courts  have  thought  necessary,  to  prevent 
any  unfair  advantage  being  taken  of  the  general  words  in  which  it  is  expressed, 
r  *21R  1  ^*^ '^'  *therefore,  always  interpreted  as  subordinate  to  the  voyage 
L  J  insured,  which  is  the  principal  object  of  the  contract;  and  in  cases 

of  doubt,  it  must  be  understood  with  reference  to  the  laws  of  commerce,  and 
the  usage  of  the  particular  trade.  It  must  also  be  confined  to  some  purpose 
within  the  scope  of  the  adventure ;  whether  the  purpose  be  within  that  scope 
or  not,  is  a  question  of  law ;  whether  the  ship  stay  an  unreasonable  time  is  a 
question  of  fact,  (o) 

In  Violeft  v.  Allnutt  (6)  it  was  held,  that  liberty  to  touch  at  a  port  for  any 
purpose  whatever,  includes  liberty  to  touch  for  the  purpose  of  taking  in  part  of 
the  goods  insured,  (c) 

But  in  JViUiams  v.  Shee^  {d)  where  a  ship  was  insured  "at  and  from  Lon- 
don to  Berbice,  with  liberty  in  the  most  extensive  terms  to  touch,  stay,  and 
trade  at  all  places,"  &c.  The  ship  arrived  with  convoy  off  Madeira,  and 
immediately  began  to  land  goods,  and  load  wine  in  exchange ;  but  before  the 
wine  could  be  got  on  board  the  convoy  sailed.  The  ship  remained  at  Madeira 
for  a  week,  and  then  sailed  with  several  others  which  were  in  the  same  situa- 
tion, but  was  captured  on  her  way  to  Berbice.  Lord  Ellenborough  held  that 
the  liberty  in  the  policy  must  be  construed  with  a  reference  to  the  main  scope 
of  the  voyage ;  and  though  there  did  not  appear  to  have  been  a  wilful  desertion 
of  the  convoy,  the  ship,  by  putting  into  Madeira,  and  voluntarily  staying 
behind  there  for  the  purpose  of  trade,  had  been  guilty  of  a  deviation  which 
discharged  the  underwriters. 

So  in  Hammond  v.  Reid,  {e)  on  a  policy  from  Para  to  New  York,  during 
her  stay  there,  and  at  and  from  thence  to  Para,  with  leave  "to  call  at  all  or 
any  of  the  Windicard  and  Leeward  Islands  and  colonies  on  her  passage  to 
Neiv  York,  and  load  and  unload  there,"  the  Court  held  that  the  going  to  two 
r  *9iq  T  of  them,,  for  a  purpose  entirely  unconnected  with  the  voyage,  was, 
L  J  ^notwithstanding  the  words  of  the  policy,  a  deviation,  and  that  the 

plaintiff  was  not  entided  to  recover. 

Neither  will  the  liberty  "to  touch  and  stay  at  any  ports  and  places  whatso- 
ever," enable  the  captain  to  alter  the  regular  course  of  the  voyage,  which  he 
must  always  keep  in  view.  And  where  a  vessel  has  substantially  discharged 
her  cargo  at  her  "final  port,"  the  adventure  is  at  an  end,  and  she  will  not  be 
protected  sailing  about  on  a  seeking  voyage  for  a  fresh  cargo. 

Tluis  in  L}glis  V.  Vaxix,  (o)  where  an  insurance  was  "at  and  from  Liver- 
pool to  Martinique,  and  all  or  any  of  the  JVindwnrd  and  I^eeward  Islands, 
with  liberty  to  touch  ai  any  ports  or  places  whatsoever,  to  take  on  board  and 
land  goods,"  (fee.  The  ship  arrived  at  MarliniqKe,  about  the  2()di  of  Mny. 
The  captain  disponed  of  all  jiis  outward  cargo,  except  a  small  quantity  of  lime 
and  bricks.  AVith  these  he  sailed  for  Antigua,  where  he  arrived  on  the  31st 
of  that  mondi.  Tlic  ship  lay  there  till  the  8th  of  July,  where  she  was  lost 
with  the  lime  and  l)ricks  still  on  board.  The  captain  liad  not  been  able  to 
obtain  a  freight  home. 

Lord  Ellenborough. — "The  captain  had  no  right  to  mix  up  the  two  objects 
together,  of  disposing  of  the  remnant  of  the  outward  cargo,  and  procuring  a 
homeward  cargo,  at  the  risk  of  the  underwriters,  on  the  outward  voyage. 


(a)  Per  Mr.  J.  Gibbs,  in  Langhorne  v.  Allnutt,  4  Taunt.  511. 
(i)   3  Taunt.  419. 

(c)  And  sec  Barclay  v.  Stirling,  5  M.  «&  S.  6. 

(d)  3  Camp.  469.  (c)  4  B.  &  A.  72. 
(a)  3  Camp.  437. 


121 

When  the  disposal  of  the  outward  cargo  ceased  to  he  the  sole  object  of  his 
stay  at  Antigua,  these  underwriters  were  discharged." 

And  in  Moore  v.  Taylor,  (b)  where  an  insurance  was  made  on  a  ship  "at 
and  from  St.  Vincent,  Barbadoes,  and  all  or  any  of  the  West  India  Islands, 
to  her  port  or  ports  of  discharge,  and  loading  in  the  United  Kingdom,  during 
her  stay  there,  and  thence  back  to  Barbadoes,  and  all  or  any  of  the  JVest  India 
colonies,  until  tlae  ship  should  have  arrived  at  her  final  port  of  discharge  as 
aforesaid."  The  vessel  sailed  from  Barbadoes,  and  arrived  at  Liverpool  in 
June;  she  took  in  her  cargo,  of  which  a  part  consisted  of  fifty  tons  of  coals 
*in  bulk,  and  fifteen  thousand  common  bricks.  The  coals  and  p  ^oon  -\ 
bricks  were  expressly  ordered  by  the  owners,  and  were  mentioned  L  J 

in  the  invoice  and  bill  of  lading  as  cargo  sliipped  there.  She  sailed  from  Liver- 
pool on  the  1st  o(  July,  and  arrived  on  the  2nd  of  August  at  Barbadoes.  The 
wiiole  cargo,  with  the  exception  of  the  coals  and  bricks,  was  discharged  at 
Barbadoes,  and  three  hundred  and  thirty  empty  casks  were  taken  on  board 
by  the  same  boats  which  took  the  cargo  on  shore.  The  vessel  was  about  to 
sail  from  Barbadoes  to  Berbice,  for  the  purpose  of  procuring  a  cargo,  on  the 
11th  of  August,  but  was  lost  in  a  hurricane  on  the  night  of  the  10th.  On  the 
31st  of  July,  two  days  before  the  ship's  arrival  at  Barbadoes,  the  plaintiffs 
write  to  their  correspondent  at  Berbice  a  letter,  containing  this  passage  : — 
*'  We  have  determined  on  sending  over  the  Decagon,  with  as  many  rum  pun- 
cheons as  she  can  carry,  besides  the  coals  and  bricks  that  she  is  ballasted  with  ; 
and  we  request  that  you  will  engage  as  much  molasses  as  will  load  her — say 
three  hundred  and  thirty  puncheons."  It  was  also  proved,  that  some  ballast 
was  necessary  for  her  voyage  from  Barbadoes  to  Berbice.  It  was  contended 
for  the  defendants,  that  the  adventure  was  determined  at  Barbadoes,  the  ship 
having  discharged  all  but  the  coals  and  bricks.  The  Lord  C.  J.  Denman 
directed  the  jury  to  find  for  the  defendant,  if  they  thought  that  the  cargo  had 
been  substantially  discharged  at  Barbadoes.     The  jury  found  for  the  defendant. 

lAltledale,  J. — "I  should  probably  have  aiTived  at  a  conclusion  different 
from  that  of  the  jury;  for  the  proportion  of  the  bricks  and  coals  to  the  rest 
of  the  cargo  does  appear  to  me  very  large  for  articles  which  were  to  serve  as 
mere  ballast,  and  there  is  no  doubt  of  their  having  been  originally  taken  out  as 
merchandise.  That,  however,  was  entirely  a  question  for  the  jury,  who  were 
to  determine  what  was  substantially  the  port  of  discharge.  I  cannot  say  that 
they  have  determined  improperly.  Then  the  only  question  for  us  is  the  con- 
struction of  the  policy.  Now  the  first  expression  used  in  it  relative  to  the 
duration  of  the  adventure  is,  'port  or  ports  of  *discharge,  and  p  ^n„,  -, 
loading  in  the  United  Kingdom;'  the  words  'final  port'  do  not  L  J 

occur  till  a  later  part  of  the  instrument,  and  they  must  be  interpreted  by  aid  of 
the  earlier  words.  I  am  of  opinion,  therefore,  that  the  risk  was  meant  to  end 
as  soon  as  the  substantial  purpose  of  the  voyage,  that  is,  the  delivery  of  the 
cargo  was  completed;  and  I  cannot  agree  that  it  was  to  continue  while  the 
empty  ship  was  on  a  seeking  voyage  for  a  fresh  cargo." 

Parke,  J. — "I  am  entirely  of  the  same  opinion.  It  is  contended  that  the 
adventure  continued,  not  only  till  the  cargo  was  discharged,  but  during  all  the 
time  the  vessel  should  be  seeking  a  fresh  cargo.  But  it  seems  to  me  impossible 
to  put  so  wide  a  construction  on  the  policy.  'Final  port'  must  mean  the  port 
which  is  final  with  a  reference  to  the  goods  taken  on  board  in  the  United  King- 
dom. The  case  is  not  distinguishable  from  Inglis  v.  Vaux.  {a)  Then  as  to 
the  question  of  the  discharge  of  the  cargo,  that  was  entirely  for  the  jury." 

Patteson,  J.,  and  Lord  Denman,  C.  J.,  concurred. 

{h)  1  A.  «Sc  E.  25.  (a)  3  Camp.  437. 


122  IT    SHALL    BE    LAWFUL    FOR   THE    SHIP,  ETC. 

In  MeUish  v.  Andrews,  [b)  which  was  an  action  on  a  poUcy  of  insurance 
on  goods  "at  and  from  London  to  the  ship's  discharging  port  or  ports  in  the 
Baltic^  with  Hlierty  to  touch  at  any  port  or  ports,  for  orders  or  other  purposes, 
and  to  touch  and  stay  at  any  ports  or  places  whatsoever  and  wheresoever :"  it 
was  held  by  Lord  Ellenborough  and  the  rest  of  the  Court  that  the  ship  having 
touched  at  Carhhamn  in  Sweden  for  orders,  and  having  gone  on  to  Swine- 
munde,  a  more  distant  port,  for  further  orders,  and  having  received  orders  at 
Swinemunde,  because  it  was  unsafe  to  land  there  to  return  to  Carhhamn,  and 
await  for  orders,  might  so  return  to  Carlshamn  without  being  guilty  of  a  devi- 
ation, it  being  shewn  that  she  went  to  Swinemimde  for  orders,  in  the  prosecu- 
tion of  her  voyage,  and  returned  to  Carlshamn  to  obtain  orders  in  the  further 
prosecution  of  it. 

And  a  similar  construction  was  lately  put  upon  a  policy  in  the  Court  of 
f  *99r>  -|  King's  Bench,  in  the  case  of  Hunter  v.  Leathley.  («)  The  policy 
L  -  -^  J  *^y^g  effected,  "at  and  from  Singapore,  Penan g,  Malacca,  and 
Bafavia,  all  or  any,  to  the  ship's  port  or  ports  of  discharge  in  Europe,  with 
leave  to  touch,  stay,  and  trade  at  all  or  any  port  or  places  whatsoever  and 
wheresoever,  in  the  Bast  Indies,  Persia,  or  elsewhere,  upon  goods  on  board 
certain  vessels  beffinninji  the  adventure  from  the  loading  thereof  on  board  the 
said  ships  as  above."  And  "it  should  be  lawful  for  the  said  ships,  &c.',  in 
that  voyage,  to  proceed  and  sail  to,  and  touch  and  stay  at  any  ports  or  places, 
whatsoever  and  wheresoever,  in  any  direction,  and  for  any  purpose  necessary 
or  otherwise,  particularly  Singapore,  Penang,  Malacca,  Batavia,  the  Cape 
of  Good  Hope,  and  St.  Helena,  with  leave  to  take  on  board,  discharge,  reload, 
or  exchange  goods  and  passengers,  without  being  deemed  any  deviation  from, 
and  without  prejudice  to  that  insurance."  The  ship  took  in  part  of  her  cargo  at 
Batavia,  then  went  to  Sonrabaya,  another  port  in  the  East  Indies,  (not  in  the 
course  of  the  voyage  from  Batavia  to  Europe,  and  not  specified  by  name  in 
the  policy)  and  took  in  other  goods,  and  then  returned  to  Batavia,  whence  she 
afterwards  sailed  for  Europe,  and  was  lost  by  perils  of  the  sea.  The  case  was 
tried  before  Tiord  Tenterden  at  Guildhall,  and  a  special  verdict  was  found  by 
the  jury.  The  judgment  of  the  Court,  after  taking  time  to  consider,  was  deliv- 
ered by  Lord  Tenterden,  C.  J. — "It  is  obvious,  on  the  perusal  of  this  policy, 
in  which  so  many  places  of  departure,  and  four  ships  are  mentioned,  with 
liberty  to  declare  and  specify  the  particular  ship  and  goods  afterwards,  that  at 
the  time  of  the  insurance,  the  assured  must  have  been  ignorant  of  the  particu- 
lar port  in  the  East  Indies,  at  which  goods  for  him  would  be  shipped,  as  well 
as  of  the  name  of  the  ship,  as  of  the  species  of  goods ;  and  must  therefore 
have  intended  to  liave  protected  himself  against  loss,  whatever  miglit  be  the 
sort  of  goods,  by  wliichsoever  of  the  four  ships  they  should  be  sent,  and  at 
r  *99'i  "1  ■^v'l'^tsoever  ])lace  or  places  in  tlie  East  they  *might  be  put  on 
L  J  board  ;  and  tlie  defendants  subscribing  such  a  policy  must  be  under- 

stood to  have  intended  to  afford  a  protection  equally  extensive,  if  the  terms  of 
the  policy  will  admit  of  such  an  effect  being  given  to  the  instrument."  His 
Lordship,  after  referring  to  the  rule  of  construction  of  marine  policies  laid  down 
by  Lord  Ellenborough  in  Robertson  v.  French  {It)  proceeded  thus : 

"Such  being  the  objec-t  of  the  assured  and  the  rule  of  construction,  we  are  to 
look  at  the  policy  in  order  to  gather  from  thence  whether  or  no  the  whole  or 
any  part  of  the  plaintiff's  interest  can,  consistently  with  such  decisions  as  have 
taiien  place  on  similar  subjects,  be  considered  as  protected.  The  plaintiff  con- 
tends that  his  whole  interest,  as  well  in  the  goods  shipped  at  Sourabaya,  as  in 


(Jj)  2  M.  &  S.  26.  (a)  10  B.  &  C.  858. 

{b)  See  ante,  p.  183. 


IT  SHALL  BE  LAWFUL  FOR  THE  SHIP,  ETC.  123 

the  goods  shipped  at  Batavia^  is  protected.  The  defendant  insisis  that  no  part 
is  protected ;  or,  supposing  the  goods  shipped  at  liatavia  to  be  protected,  that 
the  shipment  at  Simrabaya  is  not.  The  grounds  npoi^  which  it  was  coiitcMided 
that  no  part  was  protected  were,  first,  that  tlie  poHcy  did  not  attach,  tlie  goods 
shipped  at  Butavia  being,  as  it  was  urged,  sliipped,  not  for  a  voyage  to  .flnt- 
iverp,  but  for  a  voyage  to  Sourabaya  and  l)ack  to  Butavia;  from  whence  a 
distinct  voyage  to  Anliverp  commenced.  Secondly,  supposing  the  policy  to 
have  attached  on  those  goods  while  the  ship  remained  at  Bafavia,  yet  the 
voyage  to  Sourabaya  was  a  deviation.  The  ground  on  which  it  was  contended 
that  the  goods  shipped  at  Sottrubaya  were  not  protected  was,  that  Sourabaya 
could  not  be  considered  as  a  port  of  loading,  or  terminus  a  quo  within  the  mean- 
ing of  this  policy.  We  are  of  opinion,  however,  that  goods  shipped  at  Batavia 
were  in  reality  shipped  for  a  voyage  to  ,flntwcrp  by  way  of  Sourabaya^  and  that 
the  ship's  first  departure  f(;om  Batavia  was  on  such  a  voyage.  And  considering 
the  very  extensive  powers  given  by  this  pohcy  both  in  the  first  and  last  clauses, 
we  think  the  sailing  to  Sourabaya  was  not  a  deviation ;  it  could  not  be  so 
*deemed  without  a  direct  contradiction  to  the  terms  of  the  policy,  it  p  s:904.  ~i 
being  clear  that  tlie  ship  sailed  to   Sourabaya  for  the  purpose  and  L      "^  J 

in  the  prosecution  of  tlie  oriijinal  adventure  contemplated  by  the  policy.  And 
upon  these  points  the  principle  of  the  decision  in  MeUinh  v.  AndrewSi,  (a)  is 
applicable  to  the  present  policy;  the  only  difference  between  the  two  cases 
being,  that  in  MeUish  v.  Andreu^s  the  places  of  discharge  or  termination  of  the 
voyage,  and  the  course  of  sailing  for  that  purpose,  were  left  undefined,  by 
reason  of  the  uncertain  state  of  commerce  in  the  Baltic^  and  in  the  present  case 
the  places  of  shipment  or  commencement  of  the  voyage,  and  the  course  of 
sailing  for  that  purpose,  are  left  undefined,  by  reason  of  the  ignorance  of  the 
assured  as  to  those  particulars.  The  order  in  which  the  four  places  named 
stand  in  die  policy,  shews  plainly  that  a  voyage  in  the  direct  geographical  or 
nautical  course  was  not  thought  of,  it  being  clear  that  it  was  thought  possible 
that  goods  migiit  be  laden  at  each  of  those  places. 

AVith  regard  to  the  goods  shipped  at  Sourabaya,  the  question  is,  whether 
that  place  c;in  be  considered  as  a  loading  port  or  terminus  a  quo  within  the 
meaning  of  the  policy.  Sourabaya  is  certainly  a  place  in  the  E(tst  Indies,  and 
so  within  the  meaning  of  the  words  used  in  that  part  of  the  policy  wherein  the 
voyage  is  described.  But  it  is  said,  that  the  words  ''ports  and  places  in  the 
East  Indiis,  Persia,  or  elsewhere,"  not  following  directly  after  the  four  places 
first  named,  as  the  termini  a  quibus,  but  after  the  places  named  as  the  termini 
ad  quos,  and  being  introduced  by  the  words  'with  leave,'  &:c.,  cannot  be 
understood  to  designate  places  of  shipment  of  the  plaintiff's  goods,  but  only 
places  to  which  the  ships  might  be  permitted  to  sail  for  some  other  purpose. 
On  the  other  hand,  it  was  contended  that  those  words  might,  according  to  two 
decided  cases,  which  I  shall  presently  mention,  be  considered  as  places  of 
shipment,  and  that  in  this  particular  policy  they  must  be  so  considered,  because 
the  *places  to  which  the  ships  mieht  sail  without  deviation  or  preju-  p  sook  "i 
dice  to  the  in-urance,  are  afterwards  mentioned  and  provided  I'or  L  -' 

by  the  policy  in  a  distinct  clause,  of  which  the  language  is  more  loose  and 
comprehensive  than  the  language  of  the  first  clause.  Now,  if  we  suppose  that 
a  shipment  of  goods  by  the  plaintifr  in  some  place  that  might  be  imagined,  as, 
for  instance,  on  the  coast  of  Brazil,  would  not  be  a  shipment  within  the  first 
clause,  and  so  not  be  protected  by  the  policy;  but  that,  nevertheless,  if  the 
ship,  after  receiving  the  plaintiff's  goods,  had  sailed  for  that  coast  for  some 
other  lawful  purpose,  the  benefit  of  the  policy  would  have  been  saved  by  virtue 


(a)  2  M.  &  S.  27,  ante,  p.  221. 


124  IT   SHALL    BE    LAWFUL    FOR   THE    SHIP,  ETC. 

of  the  latter  clause ;  the  two  clauses  will  each  have  a  distinct  and  appropriate 
sense.  And  without  determining^  what  effect  the  latter  clause  miffht  have  on  a 
question  as  to  the  places  of  shipment  of  the  plaintiff's  goods.  Ave  are  clearly  of 
opinion  that  the  words  'ports  and  places,'  &c.  in  the  first  clause  may  and  ou^ht 
to  be  understood  as  such  places.  And  the  two  cases  of  Violett  v.  Allmitl^  (a) 
and  Barclay  v.  Sler/ins:,  (b)  are  plain  authorities  to  shew  that  a  place  mentioned 
after  the  words  'with  liberty  to  touch,'  &;c.,  may  be  considered  as  a  loading 
port.  For  these  reasons,  and  upon  these  authorities,  we  think  the  plaintiff 
entitled  to  recover  in  respect  of  all  his  goods,"  (c) 

But  where,  in  Lavabre  v.  JfVson,  and  Lavahre  v.  Walter,  (d)  an  action 
upon  a  policy,  the  voyage  insured  was  described  in  these  words  :  "  at  and  from 
Port  L' Orient  to  Pomlir.herryn  Madras  and  China,  and  at  and  from  thence 
back  to  the  ship's  port  or  ports  of  discharge  in  France,  with  liberty  to  touch, 
in  the  outward  or  homeward-bound  voyage,  at  the  isles  of  France  and  Bour- 
bon, and  at  all  or  any  other  place  or  places  what  or  wheresoever."  In  a  sub- 
sequent part  of  the  policy  there  was  this  clause,  "and  it  shall  be  lawful  for  the 
r  *2'2r  1  ^^^^  ^'^^P  ^'^  *^'^'^  voyage  to  proceed  and  sail  to,  and  touch  and  stay 
L  J  at  *any  ports  and  places  whatsoever,  as  well  on  this  side  as  on  the 

other  side  of  the  Cape  of  Good  Hope,  without  being  deemed  a  deviation." 
The  ship  arrived  at  Pondicherry,  and  after  remaining  there  one  month,  she 
sailed  for  Bens^al,  instead  of  going  to  China  ;  having  wintered  at  Bengal,  and 
received  considerable  repairs,  she  returned  to  Pondicherry ;  and  having  taken 
in  a  homeward-bound  cargo,  proceeded  in  her  voyage  back  to  Z'  Orient,  but 
was  taken  by  the  Mentor  privateer.  The  question  in  that  case,  as  far  as  it  is 
material  to  us  in  ttiis  part  of  our  work,  was,  wliether  the  voyage  to  Bengal 
was  insured  within  the  construction  of  this  policy  ?  The  reporter  of  this  case 
says,  it  was  insisted  in  the  opening,  for  the  plaintiffs,  that,  under  the  general 
liberty  given  by  the  policy,  of  touching  at  all  places  whatsoever,  the  vessel 
might  go  to  Bengal,  which,  by  the  operation  of  those  words,  was  as  much 
part  of  the  voyage  as  if  it  had  been  expressly  named. — Lord  Mansfield,  how- 
ever, having  intimated  a  clear  opinion,  that  the  general  words  v/ere,  by  the 
expressions  of  "in  the  outward  or  homeward-bound  voyage,"  and  "in  this 
voyage,"  qualified  and  restrained  so  as  to  mean  all  places  whatsoever  in  the 
usual  course  of  the  voyage  "to  and  from  the  places  mentioned  in  the  policy," 
this  ground  was  immediately  abandoned,  and  never  further  mentioned  by  the 
counsel  for  the  plaintiffs  in  the  progress  of  these  causes. 

So  in  a  case  of  Richardson  v.  London  Assurance  Company,  [a]  upon  an 
East  India  captain's  investment,  to  all  or  any  of  the  ports  or  places,  &:c.  until 
arrived  at  the  last  place  of  discharge  on  the  outward  cargo.  Lord  EUenborough 
held  that  the  outward  voyage  terminated,  where  all  the  company's  outward 
cargo  was  discharged. 

There  has  been  a  very  recent  case  of  Phillipps  v.  Irving,  (b)  which  is  an 
important  case  on  this  subject.  The  action  was  on  a  policy  of  insurance  on 
r  *227  1  ^^^  ^'^^f  Broxbourneburg,  "at  and  *from  London  to  Bombay,  and 
L  -^  thence  to  China,  and  back  to  the  United  Kingdom,  with  liberty 

to  touch,  stay,  and  trade  at  all  ports  and  places  on  this  side,  at,  or  beyond 
the  Cape  of  Good  Hope.'"     The  defendant  pleaded  first,  (which  was  the  only 


(rt)  3  Tiiunt.  419.  {I,)  5  M.  &  S.  6. 

(<•)  This  case  was  afterwards  removed  by  error  into  tlic  Exchequer  Chamber,  and  the 
judf^mont  of  the  Court  above  affirmed,  7  Biiig.  517, 

(r/)    1  Doug.  284.  (a)  Camp.  94. 

(6)  8  8cott,  N.  R.  n,  ante,  p.  177,  where  tlie  case  is  briefly  mentioned  in  conjunction 
with  Mount  v.  Larkins,  to  which  it  is  likened  in  this  case,  for  the  question  respecting 
unreasonable  delay. 


IT    SHALL    BE    LAWFUL    FOR   THE    SHIP,   ETC.  125 

plea  on  which  any  question  was  raised,)  that  tlic  sliip  arrived  at  Bornhuy, 
remained  tliere  an  unreasonable  time,  and  that  the  assured  did  not  duly  j)rose- 
cute  the  voyage  insured,  and,  thercifore,  was  guilty  of  a  deviation.  At  the 
trial,  the  facts  applicable  to  that  plea  were  withdrawn  from  the  consideration  of 
the  jury,  and  it  was  agreed  tliat  it  should  be  reserved  for  the  Court  to  deter- 
mine ui)on  the  facts  applicable  to  the  first  issue,  whether  or  not  there  had  been 
an  unreasonable  delay  in  the  prosecution  of  tlie  voyage  as  to  discharge  the 
underwriters.  The  jury  havinir  returned  a  verdict  for  the  j)laintifr.  A  motion, 
(pursuant  to  leave  reserv(nl)  was  made  to  enter  a  nonsuit  or  a  verdict,  on  the 
first  issue,  for  the  defendant. 

On  the  argument,  it  was  contended  that  the  delay  at  Bombay  from  tlie  time 
of  the  completion  of  some  repairs  which  had  been  considered  necessary,  until 
the  2nd  November,  at  all  events,  was  unreasonable,  so  far  as  concerned  the 
underwriters,  and  clearly  amounted  to  a  deviation.  [^Crcssivc/l,  J. — "The 
captain  had  a  right  to  staj'-  at  Bombay  a  reasonable  time,  with  reference  to  his 
owner's  interests."]  But  the  reasonableness  of  the  time  must  be  estimated  by 
the  ordinary  state  of  trade :  the  underwriters  do  not,  by  their  contract,  hold 
themselves  responsible  for  delays  resulting  from  lowness  of  freight.  [Tindal, 
C.  J. — ''Tlie  question,  as  it  strikes  me,  is,  whether  or  not  the  master  waited 
at  Bombay  longer  than  was  reasonable,  regard  being  had  to  the  interests  of  his 
employers,  and  the  duty  he  owed  them :  and  if  not,  whether  that  was  not  one 
of  the  contingencies  covered  by  the  policy."]  The  owners  might  protect  their 
interest  by  a  time  policy.  [^Tmdal,  C.  J. — "The  policy  provides  that  the 
ship  may  touch,  stay,  and  trade  at  all  ports  and  places,  &c.  How  lono-  is  the 
master  to  stay.'  The  limit  must  clearly  be  with  reference  *to  the  r-  ^„nQ  -, 
advantage  of  the  owners.     A  stay  that  would  be  reasonable  with  L  J 

regard  to  the  owners'  interests,  may  surely  be  reasonable  in  the  contemplation 
of  the  underwriters."]  \_Cresswell,  J. — "What  is  the  ordinary  state  of  trade 
at  Bombay?''''^  The  delay  was  conceded  to  be  extraordinary  and  out  of  the 
usual  course,  and  unreasonable,  unless  justified  by  reason  of  the  circumstances 
deposed  to  by  the  captain  and  the  mate.  [Cressivell,  J. — "The  question  is  one 
of  considerable  importance  to  shipowners  and  underwriters,  and  more  especi- 
ally as  regards  ships  engaged  in  the  Afrir.an  trade,  where  the  exorbitant  demands 
of  the  native  princes  frequently  occasion  many  months'  delay."]  The  Court 
took  time  to  consider  then-  opinion,  which  was  now  delivered  by  Tindal,  C.  J. 
After  stating  the  case  as  in  the  commencement  of  this  account  of  it,  his  Lord- 
ship proceeded  :  "The  ship  arrived  on  the  3rd  June,  1842 ;  some  repairs  were 
necessary,  which  were  completed  on  the  2nd  September:  the  ship  was  then 
ready  to  take  in  her  cargo,  but,  in  fact,  none  was  put  on  board  until  lOlh  Jan- 
nary,  1843.  The  ship  was  a  seeking  ship,  commanded  by  one  of  the  part- 
owners  :  and  we  think  it  was  clearly  proved  that  he  could  not  at  an  earlier 
period  have  obtained  a  cargo,  either  for  China  or  the  United  Kingdom,  at 
a  remunerating  freight.  Several  circumstances  combined  to  render  freights 
unusually  low  at  Bombay  during  the  time  the  ship  in  question  remained  there. 
Ships  that  had  taken  out  troops  were  in  want  of  homeward  cargoes,  and  the 
disturbance  with  the  trade  with  China  had  prevented  many  ships  from  sailing 
thither  from  Bombay.  The  latter  port  was  therefore  crowded  with  shipping, 
and  the  freights  offered  would,  if  accepted,  have  occasioned  a  great  loss  to  the 
owners ;  and  there  was  nothing  to  shew  that,  as  far  as  the  interests  of  the 
owners  were  concerned,  the  delay  at  Bombay  was  improper.  But  it  was  con- 
tended, that  although  tlie  adventure  on  which  the  ship  sailed  might  have  been 
prosecuted  without  any  improper  delay,  as  far  as  the  owners  were  concerned, 
yet  with  regard  to  the  underwriters,  the  case  was  *different,  and  ^    ^  ^ 

the  delay  unreasonable  and  improper,  and  therefore  equivalent  to  a  L  '^^^  J 
deviation ;  and  that,  as  the  concurrence  of  circumstances  which  rendered  freights 


126  DEVIATION    FROM    THE    VOYAGE    INSURED. 

lit  Bombay  ruinously  low  was  unusual,  it  could  not  be  said  that  the  voyage 
was  prosecuted  in  the  usual  course.  It  was  not,  nor  could  it  be  denied  that  the 
ship  might  be  detained  some  time  in  order  to  obtain  a  cargo  at  a  reasonable  rate 
of  freight;  but  it  was  said  that  such  detention  could  not,  without  discharging 
the  underwriters,  be  extended  beyond  the  time  usually  required  for  such  pur- 
pose. It  appears  to  us,  however,  that  no  such  rule  can  be  laid  down;  that 
detention  for  a  reasonable  time,  for  the  purpose  of  the  adventure  insured,  must 
be  allowed  :  and  that  whether  the  time  is  reasonable  or  not,  must  be  deter- 
mined, not  by  any  positive  and  arlntrary  rule,  but  by  the  state  of  things  exist- 
ing at  the  time  at  the  port  where  the  sliip  happens  to  be.  It  may  be  collected 
from  numerous  cases,  {a)  that  delay  before  or  after  the  commencement  of  a 
voyage  is  not  equivalent  to  a  deviation,  unless  it  be  unreasonable.  And  we 
think  that  no  certain  or  fixed  time  can  be  said  to  be  reasonable  or  unreasonable 
for  seeking  a  cargo  in  a  foreign  port,  but  that  the  time  allowed  must  vary  with 
the  varvinii-  circumstances  which  may  render  it  more  or  less  difficult  to  obtain 
such  a  cargo."     Rule  refused. 

DEVIATION    FROM    THE    VOYAGE    INSURED. 

The  circumstances  relating  to  the  permission  granted  to  the  assured  by  the 
terms  of  the  policy,  that  in  performing  the  voyage  insured,  he  shall  go  to  and 
touch  at,  and  stay  at  those  places  on  the  voyage  in  question,  which  are  usual 
for  ships  trading  to  the  particular  part  of  the  world,  and  in  the  habit  of  so 
doing,  "without  any  prejudice  to  the  insurance,"  have  been  mentioned. 
r  *9'^n  "1  'f  hese  observations,  it  will  be  recollected,  apply  more  particu- 
L  '^'^^  J  larly  *to  the  ships  which  are  insured  on  voyages  to  the  East 
ladies,  and  round  the  Capes,  to  China,  and  difl^erent  distant  parts  of  the  globe : 
we  have  seen  that  such  ships  are  usually  insured  with  very  extensive  liberties 
both  in  port  and  at  sea,  backwards  and  forwards,  and  on  all  kinds  of  services, 
&c.,  and  we  saw  that  formerly  it  was  the  practice  of  the  East  India  Company, 
frequently  to  employ  the  ships  which  had  sailed  from  Europe  in  any  trade,  or 
for  any  purpose  of  their  own,  without  any  regard  to  the  interests  of  the  owners ; 
in  consequence  of  this  practice,  it  was  necessary,  in  order  to  protect  the  interests 
of  the  shipowners  and  freighters,  that  these  extensive  and  comprehensive  liber- 
lies  should  be  inserted  in  policies  on  those  voyages ;  and  all  those  risks  attend- 
ing such  voyages  were  well  known  to  the  underwriters,  and  they  protected 
themselves  accordingly  by  the  amount  of  the  premiums  :  but  we  also  recollect, 
that  it  has  been  laid  down  by  many  decisions,  that  the  Courts  of  law  have 
always  construed  the  particular  clause  in  the  policy  making  it  lawful  for  the 
ship  "to  "touch,  stay,  trade,"  &c.  strictly,  and  that  it  is  held  that  this  liberty  is 
always  to  be  confined  to  some  legitimate  purpose  connected  with  the  voyage 
insured ;  and  it  is  expected  that  a  ship  insured  for  any  particular  voyage,  does 
at  once  proceed  to  take,  and  keep  (if  it  is  possible)  the  proper  route  and 
course,  Avhich  according  to  seai'aring  persons,  is  acknowledged  by  all  such  to 
be  the  best  and  tlie  proper  one  to  perform  the  voyage  insured. 

But  if,  instead  of  keeping  the  proper  course,  the  ship  either  by  the  direction 
of  the  assured,  or  his  agent,  or  l)y  the  wilfid  act  ol"  the  master,  without  neces- 
sity, or  any  reasonable  cause,  alter  her  com-se  in  a  different  direction,  for  any 
purpose  not  connected  with  tlu;  original  voyage  insured,  this  amounts  in  the  law 
of  marine  insurances  of  this  country,  to  what  is  termed  a  "deviation"  from  the 
voyage.     13ut  this  is  not  all ;  for  if  a  ship  is  at  a  particular  port,  and  is  repre- 


(a)  Hartley  v.  Buj^jrin,  Park  Ins.  652.     Mount  v.  Larkins,  1  M.  «fe  Scott,  165;  8  Bing. 
109.     Ougier  v.  Jennings,  1  Camp.  505,  (n). 


DEVIATION    FROM    THE    VOYAGE    INSURED.  127 

sented  to  the  underwriters  as  he'intr  bound  at  such  a  time  on  a  certain  voyage, 
upon  whicli  an  insurance  is  made  by  the  party  interested,  with  the  underwriters, 
and  the  ship  leaves  her  *port  and  starts  ever  so  little  a  way  on  her  r-  ^ooi  -i 
voyage,  or  if  she  is  insured  in  port  and  is  lost  before  she  sads,  if  L  '  J 
by  sudicient  proof  it  can  be  made  apparent,  that  by  the  particular  equipment 
of  the  ship — the  coals,  stores,  and  provisions,  calculated  for  a  dillerenl  voyage 
from  the  one  represented  to  the  underwriters,  or  from  evidence  either  of  wit- 
nesses, or  by  letters  on  the  subject,  from  that  moment  the  insurance  is  void ; 
for  it  is  manifest  that  the  master,  either  by  direction  of  his  owners,  or  by  a 
wilful  act  of  his  own,  had  prepared  himself  before  he  set  sail,  to  go  on  a 
voyage  different  from  the  one  insured,  and  the  moment  he  left  the  port(o)  is 
lost,  or  in  case  of  the  insurance  being  on  the  ship  in  port,  if  she  is  lost  in  port, 
the  insurance  is,  from  the  fact  of  the  preparation  of  tlie  master  to  go  upon  a 
voyage  other  than  tlie  voyage  insured,  void.  (/;) 

I.  The  term  deviation  in  marine  insurances  is  understood  to  mean,  a  volun- 
tary departure,  without  necessity,  or  any  reasonable  cause,  from  the  regular 
and  usual  course  of  the  specific  voyage  insured,  (r) 

There  are  a  great  many  cases  in  the  books,  varying  in  their  particular  circum- 
stances, but  which  have  been  held  by  the  Judges  to  amount  to  such  a  departure 
from  the  oriijinal  voyage  as  to  dischartjc  the  underwriters.  I  shall  endeavour 
to  divide  the  subject  into  the  different  classes  of  the  cases  which  have  been  held 
deviations  from  the  voyage  insured. 

But  I  shall  previously  mention  an  important  case.  The  case  I  mean  is  that 
of  Vnllfjo  v.  irheeler,  [d)  tried  before  Mr.  .1.  AsJmrst^  at  GuUdhull,  at  the 
sittings  after  Easter  Term,  1774,  and  after  brought  upon  motion  for  a  new  trial, 
when  Lord  Chief  Justice  Mansfield  and  the  rest  of  the  Judges  delivered  their 
judgnu^nts  :  I  shall  only  here  remark,  that  it  was  admitted  in  tlie  case  that  the 
master  had  been  guilty  of  a  deviation  by  carrying  the  ship  out  of  her  course 
*to  Giinnsey  on  a  smuggling  speculation  of  his  own,  but  as  this  p  soqo  t 
was  held  to  be  a  fraudulent  act  of  the  master  against  the  owner,  L  -^ 

^pro  hoc  vice,^  the  underwriters  were  liable  upon  the  question  of  "barratry 
of  the  master,"  against  which  the  freighters  were  protected  by  the  express 
terms  of  the  policy ;  and  the  Court  held  that  it  did  not  lie  in  the  mouth  of  the 
underwriter  to  object  on  the  ground  of  its  being  a  deviation,  and  so  to  prevent 
the  plaintiff's  recovering  on  that  count:  because  the  act  of  the  master  is  a 
fraudulent  act,  and  if  the  loss  is  consequential  upon  such  fraudulent  act,  it  is 
'barratry,'  against  which  the  party  is  insured:  and  therefore  the  insurers  shall 
not  object  upon  a  fact  which  is  itself  a  forfeiture  of  the  policy." 

I  shall  proceed  to  mention  an  important  decision  which  is  applicable  to  what 
I  have  above  remarked,  of  the  alteration  of  a  voyage  from  the  one  originally 
insured.  The  case  I  allude  to  is  Taskcr  v.  Cunningham  and  others,  (a) 
This  was  an  appeal  from  the  Court  of  Session  in  Scotland  to  the  House  of 
Lords.  It  came  on  for  argument  in  the  year  1819.  And  judgment  was  deliv- 
ered by  the  Lord  Chancellor  [Eldon)  on  the  7tli  of  July  of  that  year.  The 
I  circumstances  of  the  case  are  these. 

The  respondents,  who  were  engaged  in  the  Neicfoundland  trade,  expecting 
one  of  their  vessels  called  the  Henrietta.,  to  arrive  with  a  cargo  of  fish  at  Cadiz, 
in  the  beginning  of  the  year  1810,  directed  Messrs.  Lynch  ^'  Co.,  their  agents 
at  that  place,  as  soon  as  the  cargo  should  be  discharged  to  ballast  the  vessel  with 


(ff)  Graham  v.  Barras,  5  B.  &  Ad.  1011. 

(fi)  See  Woolri(l;je  v.  Boydell,  Doug.  16.   Way  v,  Modigliani,  2  T.  R.  30. 

(c)  Park  Ins.  filO. 

(d)  Cowp.  143.     This  case  is  fully  reported,  posf. 
(a)   1  Bligh,  Rep.  87. 

Vol.  VIL— K 


128  DEVIATION    FROM   THE    VOYAGE    INSURED. 

salt,  and  to  endeavour  to  procure  freight  for  her  to  Clyde.  The  vessel  arrived 
at  Cadiz  about  the  time  expected,  but  the  French  army  having  taken  posses- 
sion of  the  salt-pans  in  that  neighbourhood,  it  was  not  in  the  power  of  Lynch 
Sf  Co.  to  comply  with  tlie  respondents'  instructions.  Under  these  circum- 
stances they  resolved,  with  the  approbation  of  the  ship-master,  to  despatch  the 
r  ^'J'\'\  1  vessel  for  Liverpool,  in  the  place  of  Clyde.  Of  this  change  of  the 
L  -^^^  J  ^destination  of  the  vessel,  Messrs.  L^ynch  t^-  Co.  advised  the 
respondents  by  a  letter  dated  16th  January,  1810.  By  a  letter  dated  10th 
February,  from  the  same  persons  to  the  respondents,  the  cause  of  this  variation 
is  assigned  in  the  following  terms  :  "I  have  at  last  sold  the  Elizabeth'' s  cargo 
at  85  per  quintal,  &c.  As  to  the  Hcnrieita's  I  could  not  get  a  purchaser  for 
the  whole,  so  began  to  retail  it  at  five  dollars,  at  which  I  hope  to  send  the  wliole 
off  shortly.  As  the  French  have  got  possession  of  all  the  salt-pans  in  the  neigh- 
bourhood, I  cannot  ship  any  salt  in  these  vessels,  so  that  we  will  set  them  up 
for  LJvcrpool  (where  salt  can  be  got)  with  a  prospect  of  getting  full  freight 
without  much  delay."  It  was  necessary  that  a  cargo  of  salt  should  be  sent  out 
earlv  in  the  spring,  for  the  supply  of  the  fishery,  and  salt  could  only  be  pro- 
cured at  Liverpool.  Messrs.  Lyacli's  letters,  with  their  intentions,  were  writ- 
ten while  the  fish  was  yet  on  board.  After  the  receipt  of  it,  and  upon  the  12th 
of  March,  the  respondents  made  an  insurance  upon  the  voyage  at  and  from 
Cadiz  to  her  port  of  discharge  in  St.  Geor^e^s  Channel,  including  Clyde, 
which  was  underwritten  by  the  appellant  to  the  extent  of  100/. 

Circumstances  afterwards  occurred  which  induced  Messrs.  Lynch  and  the 
ship-master  again  to  alter  the  destination  of  the  vessel,  'i'he  sale  of  the  cargo 
and  delivery  had  been  protracted  so  long  as  to  give  reason  to  apprehend  that  if 
the  vessel  proceeded  to  Liverpool  to  load  salt,  the  supply  of  that  article  would 
not  reach  Newfoundland  at  the  proper  season,  in  the  Spring,  and  in  the  mean- 
time the  French  had  retired  from  the  salt-pans  at  Cadiz,  so  that  a  cargo  of  salt 
could  readily  be  obtained  there. 

Messrs.  I^ynch  Sf  Co.,  therefore,  after  consulting  with  the  master  of  the 
Henrietta,  and  with  the  master  of  another  vessel  belonging  to  the  respondents, 
deemed  it  for  the  interest  of  the  respondents  to  despatch  the  Henrietta  direct  to 
Newfoundland ;  and  as  it  was  necessary  to  give  the  respondents  immediate 
information  of  this  change  in  the  destination  of  the  vessel,  to  the  end  that  they 
r  *9^4-  1  "^^S'^^  insure  the  new  voyage;  they  *wrote  on  the  28th  February, 
L  -■  1810,   to  the  respondents  in  the  following  terms:  —  "In  conse- 

quence of  the  unprecedented  want  of  small  craft,  and  the  general  confusion 
that  has  prevailed  since  the  French  appeared  in  this  neighbourhood,  the  deliv- 
ery of  the  Elizabeth'' s  cargo  has  been  delayed  ;  and  as  it  is  likely  the  Henrietta 
will  be  detained  from  the  causes.  Captain  Col/'uio  has,  after  consulting  witli 
Captain  Fields,  determined  to  return  direct  to  St.  Jolui's  with  a  cargo  of  salt, 
now  to  be  had  at  double  price."  Eight  days  after  the  date  of  this  letter,  while 
the  vessel  was  lying  at  Cadiz,  she  was  driven  on  shore  by  a  storm,  and  burnt 
by  the  French.  Tlie  letter  of  the  28tli  February,  nnd  another  letter  conveying 
the  intelligence  of  the  loss  were  received  by  the  respondents  on  the  same  day, 
viz:  upon  the  21st  o[  .^pril,  1810.  In  these  circumstances  the  respondoils 
did  not  communicate  to  the  ai)pellant  or  the  other  underwriters  the  letter  which 
they  had  received  from  JAjnch  4"  Co.  respecting  tlie  projected  alteration  of  the 
voyage,  and  obtained  payment  from  them  for  a  total  loss.  The  House  of 
Lords,  reversing  the  judgment  of  the  Court  below,  decided  that  the  correspond- 
ents at  Cadiz  were  agents  of  the  respondents  ;  that  the  voyage  insured  was 
abandoned  by  their  determination  to  send  the  ship  on  a  different  voyage,  and 
therefore  the  underwriters  were  not  liable  for  the  loss.  The  consequence  of 
which  decision  being  that  the  owners  were  bound  to  refund  the  money,  with 
interest,  which  had  been  paid  by  them  before  they  were  apprised  of  the  facts. 


DEVIATION    FROM    THE    VOYAGE    INSURED.  129 

The  Lord  Chancellor,  in  giving  his  judgment  ends  in  these  words: — "It  is 
contended  that  there  was  nothing  to  alter  the  voyage  hut  the  intention,  wliich 
might  have  been  again  varied,  and  as  there  was  no  progress  made  in  unloading 
the  cargo,  nor  any  act  done  towards  a  change  of  the  voyage ;  this  is  to  be  con- 
sidered as  a  loss  under  the  policy.  Undoubtedly  a  mere  meditated  change  does 
not  affect  the  policy.  But  circumstances  are  to  be  taken  as  evidence  of  a  deter- 
mination, and  what  better  evidence  can  we  have  than  that  those  who  were 
authorized  had  determined  to  change  the  voyage.  In  my  opinion  p  roq^  -i 
the  *voyage  was  abandoned,  and  I  have  the  highest  authority  in  L  J 

Westminster  Hall  to  confirm  that  opinion.  Suppose  they  had  gone  upon  the 
second  voyage,  and  the  ship  had  been  lost  after  insurance  for  that  voyage,  on 
which  of  the  policies  could  they  have  claimed  or  recovered?  Certainly  not  on 
the  first.  Upon  the  letters  of  the  agents  and  the  captain  it  must  clearly  be 
considered  an  abandonment."  The  Lords  found  that  the  voyage  ought  to  be 
considered  as  having  been  abandoned  before  the  loss  of  the  vessel,  and  the 
interlocutors  were  reversed,  (a) 

I  now  proceed  to  state  some  of  the  most  material  cases  of  the  several  and 
distinct  descriptions,  which,  from  early  times,  have  been  held  to  be  deviations 
by  the  Courts  of  Law. 

L  In  a  case  of  Fox  v.  Black,  (b)  the  plaintiff  was  a  shipper  of  goods  in  a 
vessel  bound  from  Dartmouth  to  Liverpool;  the  ship  sailed  from  Dartmouth 
and  put  into  Loo,  a  place  she  must  of  necessity  pass  by  in  the  course  of  the 
insured  voyage.  But  she  had  no  liberty  given  her  by  the  policy  to  go  into 
Loo ;  and  although  no  accident  befell  her  going  into  or  coming  out  of  Loo,  (for 
she  was  lost  after  she  had  got  out  to  sea  .again)  yet  Mr.  J.  Yates  held  that 
this  was  a  deviation ;  and  a  verdict  was  accordingly  found  for  the  underwriter. 

In  another  early  case  before  Lord  Mansfield,  of  Toivnson  v.  Giiyon,  (c) 
an  action  was  brought  on  a  policy  "on  goods  and  other  merchandises,"  loaded 
on  board  the  ship  called  the  Charming  Nancy,  from  '''-Dunkirk  to  Leghorn." 
The  ship  came  to  Dover,  in  her  way,  to  procure  a  Mediterranean  pass,  and 
was  afterwards  lost.  Lord  Mansfield  was  of  opinion  that  the  calling  at  Dover 
was  a  deviation,  and  the  plaintiff  was  nonsuited. 

2.  Mr.  J.  Park  says,  id)  it  was  held  by  Lord  Chief  Justice  Lee,  that  if 
the  master  put  into  a  port  not  usual,  or  stay  an  unusual  time,  it  is  a  deviation 
which  discharges  the  underwriter.  But,  in  the  case  of  Smith  v.  Surridge,  (e) 
it  was  held  that  the  *time  which  a  ship  is  detained  in  the  port  for  p  ^ooc  n 
necessary  repairs,  the  insurance  being  "at  and  from,"  shall  not  L  J 

be  taken  to  be  unnecessary  delay,  so  as  to  avoid  the  policy.  Lord  Kenyan 
said,  that  the  policy  attached  on  the  ship  while  she  was  undergoing  repairs  j 
it  was,  in  such  a  case,  not  necessary  that  she  should  be  fit  to  proceed  on  the 
voyage  at  the  time  of  the  insurance.  The  underwriter  took  into  his  conside- 
ration the  time  she  might  necessarily  be  detained. 

And  see  what  C.  J.  Tindal  said,  in  the  case  of  Mount  v.  Larkins,  [a) 
referred  to  in  a  previous  part  of  this  Treatise  ;  and  see  also  the  recent  case, 
which  I  have  already  mentioned,  of  Phillipps  v.  hving;  (b)  and  see  the  case 
of  Ougier  v.  Joinings,  (c)  which  has  likewise  been  referred  to  in  this  Trea- 
tise. 


(«)  Sec  the  case  of  Driscoll  v.  Bovill,  1  B.  &  P.  313. 

(b)  Exeter  Ass.  1767,  before  Mr.  J.  Yates,  Park  Ins.  620. 

(c)  Park  Ins.  620.  (rf)  Ibid. 

(e)  4  Esp.  25.    Ante,  p.  176.  (a)  8  Bing.  122.     Ante,  p.  107. 

(b)  8  Scott's  N.  R.  3.     Ante,  p.  226. 

(c)  Sit.  in  C.  P.  1800.     1  Camp.  505,  note  (a),  and  ante,  p.  205. 


130  DEVIATION    FROM    THE    VOYAGK    INSURED. 

Mr.  J.  Park  mentions  two  cases  of  Stift  v.  Wardcll  [d)  and  Sherijjf  v. 
Potts,  (e)  which  cases  were  declared  by  Lord  Ellenborough  to  have  been  over- 
ruled in  a  case  I  am  about  to  mention. 

It  was  the  case  of  Paine  v.  Bel/,  (f)  Avliich  was  an  insurance  at  and  from 
the  ship's  loading  ports,  on  the  coast  of  Spain  to  London,  with  liberty  to 
touch  and  stay  at  any  port  or  place  whatsoever;  the  jury  found  expressly  that 
the  going  into  and  staying  at  Gibrallar  was  of  necessity,  in  order  to  procure 
a  supply  of  provisions,  and  that  the  stay  was  not  longer  than  the  necessity 
required;  and  it  was  proved  that  while  the  vessel  lay  there,  the  captain  received 
on  board  some  chests  of  dollars.  This  fact,  and  this  finding  of  the  jury,  raises 
the  question  of  law,  whether  the  taking  in  the  additional  cargo  of  dollars  was 
a  breaking  of  bulk  in  the  course  of  the  voyage,  at  a  place  where  there  was  no 
liberty  to  trade  given  by  the  policy,  so  as  to  avoid  it,  as  increasing  or  having 
a  tendency  to  increase  the  risk.  The  point  was  very  fully  argued :  and  the 
counsel,  who  argued  that  this  amounted  to  a  deviation,  relied  on  the  two  cases 
last  quoted. 

r  «9q7  1  ^^^^  ^'^^  Court  were  unanimous  in  deciding  that,  as  the  ''jury  had 
L  J  found  that  the  whole  period  of  the  ship's  stay  was  covered  by  the 

necessity  which  originally  induced  her  to  go  into  Gibraller,  there  was  no  im- 
plied warranty  in  such  a  policy  that  the  ship  shall  not  trade,  so  as  no  delay  be 
actually  occasioned.  And  as  to  the  temptation  to  deviate  held  out  to  the 
master,  that  must  always  be  a  question  for  the  jury,  as  in  other  cases  of  fraud, 
whether  the  deviation  or  delay  arose  from  the  trading  or  from  necessity ;  and 
an  intention  to  deviate,  not  carried  into  effect,  will  not  avoid  a  policy,  still  less 
can  a  temptation  to  deviate  avoid  it. 

The  above  case  was  afterwards  twice  fully  considered.  First,  in  the  case  of 
Connack  v.  Gladstone,  (a)  where  it  was  held  that  the  vessel,  being  obliged 
to  stop  to  pay  the  Sound  dues,  at  Elsineur,  taking  in  some  provender  for 
sheep,  but  not  thereby  delaying  the  voyage,  was  no  avoidance  of  the  policy. 
Secondly,  in  the  case  of  Laroche  v.  Osivin,  {b)  where  taking  in  a  few  goods 
in  a  roadstead,  where  the  ship  way  lying  for  convoy,  and  after  the  signal  for 
sailing  but  before  the  signal  to  weigh,  was  held  not  to  be  a  deviation,  the  jury 
having  expressly  found  that  taking  in  the  goods  occasioned  no  delay. 

The  next  case  to  be  mentioned  is,  the  case  of  Elliott  and  others  v.  Wilson 
<S'  Co.,  (f)  which  underwent  a  variety  of  discussion  in  the  several  Courts  in 
Scotland ;  and  in  all  of  them  judgment  was  given  against  the  underwriters  ; 
but  upon  an  appeal  to  the  House  of  Lords,  the  various  decrees  of  the  Courts 
below  were  reversed,  agreeably  to  those  principles  adduced  in  the  beginning  of 
this  inquiry,  and  which  have  been  uniformly  admitted  as  sound  law. 

The  harbour  of  Carron,  situated  near  the  head  of  the  Frith  of  Forth,  is 
chiefly  resorted  to  by  ships  in  the  service  of  the  Carron  ('ompany,  who  have 
a  great  iron  work  and  considerable  collieries  in  the  neighbourhood.  From 
thence  vessels,  intended  principally  to  convey  the  manufactures  of  the  company, 
r  'O'ja  ~i  ^''C''"  f'oals,  and  siich  goods  as  may  be  offered  them  on  *freight, 
^  J  sail  periodically  for  Hull  and  other  places  on  the  eastern  coast  of 

England.     This  is  a  coasting  or  carrying  trade — the  vessels,  in  going  down 


{(l)  Sit   at  GuilJhiill,  Mirh.  1797,  Parkins.  621. 
{f)  Sit.  al'tcr  M.  T.  1803. 

{[)  y  r]ast,  19.5.     See  also  Urquhart  v.  Barnard,  1  Taunt.  450. 
(a)    1 1  East,  347. 

\h)   12  East,  131.     Sec  also  Violctt  v.  Ailnutt,  3  Taunt.  419,  ante,  p.  218;  Barclay  v. 
Stirlin^r,  .')  M.  &  S.  ante,  p.  218;  and  Hunter  v.  Lcathley,  10  B.  &  C.  858,  ante,  p.  221. 
(c)   7  Bro.  Pari.  Cas,  459. 


DEVIATION    FROM   THE    VOYAGE    INSURED.  131 

the  Frith,  touching  at  fliffcrent  places  to  take  in  additional  loading,  or  to  dis- 
charge part  of  what  tliey  have  received  at  places  higlier  in  the  river.  Particu- 
larly it  is  usual  for  these  vessels  to  call  at  Borroivstoivness,  and  Leif/i,  and  at 
Morrison'ii  Haven.,  a  port  six  miles  farther  down  the  Frifh,  and  on  the  same 
side  with  Leitlu  in  the  liay  of  Presfojipana.  In  February,  1774,  the  respond- 
ents had  occasion  to  ship  fourteen  hogsheads  of  tobacco  on  hoard  one  of  those 
vessels  for  Hull:  and,  desiring  to  insure  them,  gave  the  following  instructions 
in  writing  to  Hunilton  and  Bogle,  insurance-brokers  in  Glasgow — "Please  to 
insure  for  our  account  by  the  Kings' on,  George  Finlay,  master,  from  Carron 
to  Hull,  with  lilierty  to  call  as  usual,  fourteen  hogsheads  of  tobacco ;"  and  these 
instructions  were  entered  in  the  broker's  books,  for  the  perusal  of  the  under- 
writers, as  is  the  practice  at  Glasgoiv.  Upon  the  9i\i  oi'  Februarj/,  the  appel- 
lants underwrote  a  policy  of  insurance,  in  these  terms  : — "  Beginning  the 
adventure  of  the  said  tobacco  at  and  from  the  loading  thereof  on  board  tlie  said 
ship  Kincrsfon,  at  Carron  wharf,  and  to  continue  and  endure  until  said  King- 
ston (beinff  allowed  a  liberty  to  call  at  Leith)  shall  arrive  at  Hull,  and  there  be 
safely  delivered."  Tlie  respondents  were  not  privy  to  the  allowance  to  call  at 
Leith  beinsj  thus  substituted  in  the  policy  for  the  more  general  terra  as  usual, 
mentioned  in  the  instructions  to  the  broker.  The  premium  agreed  on  was  1/. 
5.9.  per  cent.— a  rate  equal,  at  least,  if  not  higher,  than  was  usual  to  be  given 
in  the  voyage,  in  cases  where  it  was  understood  or  expressed  in  the  policy, 
that  the  vessel  might  touch  at  the  customary  ports.  And,  in  particular,  some 
of  these  appellants,  in  February,  1773,  underwrote  a  policy  upon  this  very 
vessel,  and  for  the  same  voyage,  with  liberty  to  call  at  Leith  and  Morrison's 
Haven,  at  a  premium  of  one  per  cent.  only.  The  vessel  thus  insured  had 
sailed  from  Carron  five  days  before  the  date  of  the  policy,  that  is,  on  the  4th 
of  February,  1774  ;  it  did  not  call  or  touch  at  Leith,  Iiut  put  into  p  rx.Tqq  -i 
*  Morrison'' s  Haven:  set  sail  from  thence,  on  the  9th,  got  safe  L  '  -■ 
into  the  direct  course  from  Carron  to  Hull,  cleared  the  Frith  of  Forth,  and 
proceeded  with  a  fair  wind,  till  on  the  evening  of  the  10th,  the  vessel,  being 
overtaken  by  a  storm  at  Holy  Island,  on  the  coast  of  Northumberland,  was 
wrecked,  and  the  cargo  totally  lost.  All  tliese  were  facts  admitted;  nor  was 
it  alleged  by  the  appellants  that  the  ship  received  the  smallest  damage  in  going 
into  or  coming  out  of  Morrison' s  Haven.  Intelligence  of  this  misfortune 
reached  Glasgow,  on  the  14th  of  February,  when  the  respondents  for  the 
first  time  saw  the  policy  of  insurance,  or  understood  that  it  diflered  in  terras 
from  their  instructions  to  the  broker,  in  whose  hands  it  remained. 

Upon  the  24th  of  February,  the  appellants,  in  an  instrument  drawn  by  a 
public  notary,  protested  against  the  ship's  having  gone  into  Morrison'' s  Haven, 
as  a  deviation  from  the  terms  of  tiie  policy,  which  only  contained  a  liberty  to 
call  at  Leifh;  and  absolutely  refused  payment  of  the  loss.  On  this  refusal, 
the  respondents  brought  their  action  against  the  appellants  in  the  Court  of  Ad- 
miralty, in  Scotland,  and  after  various  proceedings  in  the  Courts  there,  the 
underwriters  were  decreed  to  pay  the  loss. 

But  upon  an  appeal  to  the  House  of  Lords  that  judgment  was  reversed  ;  and 
the  House  of  Lords  were  of  opinion,  that  a  wilful  deviation  from  the  due 
course  of  the  insured  voyage,  is  in  all  cases  a  determination  of  the  policy  ;  that 
from  that  moment,  the  engagemsnt  between  the  insurers  and  insured  is  at  an 
end  ;  that  it  is  immaterial  from  what  cause,  or  what  place,  a  subsequent  loss 
arises,  the  insurers  being  in  no  case  answerable  for  it:  that  going  into  Mor- 
rison''s  Haven  was  a  wilful  deviation  from  the  due  course  of  a  voyage  from 
Carron  to  Hull:  that  though  it  may  be  true,  as  contended  on  the  part  of  the 
respondents,  that  ships  sailing  through  the  Frith  of  Forth  have  sometimes 
been  permitted  by  the  terms  of  a  policy,  underwritten  at  the  same  premium  as 
the  present,  to  go  into  that  port,  it  could  not  avail  in  the  present  case,  since  the 


132  DEVIATION    FROM    THE    VOYAGE    INSURED. 

r    *240     "1  P^^^^y  i"  question  had  given  no  such  permission.     It  was  *there- 
L  J  fore  ordered  and   adjudged  that  the  interlocutors  complained  of 

should  be  reversed. 

So  where  several  places  are  mentioned  in  a  policy  the  assured  must  go  to 
them  in  the  order  in  which  they  are  named,  unless  some  usage  to  the  contrary 
is  proved. 

In  the  case  of  Beatson  v.  Hatvorth,  (a)  upon  a  policy  of  insurance  on  a 
ship,  "at  and  from  Fisherow  to  Gotlenburg,  and  back  to  Lelth  and  Cocken- 
zie,^'  it  appeared  that  in  the  homeward  voyage  she  went  first  to  Cockenzie, 
which  lay  nearer  to  Gottenburg  than  Leith,  and  was  stranded  in  the  harbour 
of  Cockenzie.  There  was  a  good  deal  of  evidence  given  to  shew  that  Leith 
harbour  was  the  safer  of  the  two  ;  but  the  jury  seemed  to  be  of  opinion,  accord- 
ing to  a  note  taken  by  Lord  Kenyan  at  the  time,  that  the  construction  of  the 
policy  was  to  be  made  by  attending  to  the  order  in  which  the  places  were 
named  in  it.  The  jury,  however,  by  consent  of  parties,  to  save  the  expense 
of  going  to  trial  again,  found  a  verdict  for  the  plaintiff,  with  permission  to  enter 
a  verdict  for  the  defendant,  if  the  court  should  agree  that  the  above  construc- 
tion was  the  true  one.  The  case  came  on  to  be  discussed  in  Court ;  and  they 
were  of  opinion,  that  unless  there  be  some  usage  proved,  or  some  special  facts 
to  vary  the  general  rule,  the  party  insured  must  go  to  the  several  places  men- 
tioned in  the  policy,  in  the  order  in  which  they  are  named ;  and  that  to  depart 
from  that  course  is  a  deviation ;  and  one  of  the  Judges  added,  that  the  parlies 
by  inserting  the  names  contrary  to  the  natural  order  of  the  places,  shewed  it 
to  have  been  the  intention  of  the  parties  to  vary  the  natural  course  of  the  voy- 
age.     A  verdict  was  entered  for  the  defendant. 

In  the  argument  of  this  case,  another  case  Classon  v.  Shnmard,  (b)  was 
quoted  by  one  of  the  learned  Judges,  as  having  been  decided  before  Lord  Chief 
Justice  Lee,  where  in  an  insurance  on  the  Gothic  L^yon  at  and  from  London 
r  *941  1  ^^  ^^^  ports  of  discharge  in  the  Str eights  as  high  as  Messina,  *his 
L  J  liordship  was  of  opinion,  as  she  did  not  stop  at  Marseilles  (for 

which  place  she  had  a  cargo)  in  her  way  to  the  Streights,  but  meant  to  take 
it  in  her  return,  that  this  was  acting  contrary  to  the  terms  of  the  policy :  for 
by  her  ports  of  discharge  must  be  understood  such  ports  as  it  was  intended 
goods  should  be  delivered  at,  and  the  first  of  these  was  Marseilles. 

So  in  the  case  of  Hogg  v.  Horner,  (a)  where  a  ship  was  insured  "at  and 
from  Lisbon  to  a  port  in  England,  with  liberty  to  call  at  any  one  port  in  Por- 
tugal for  any  purpose  whatever : "  and  where  the  ship  had  sailed  from  Lisbon 
to  Faro  to  complete  her  loading.  Faro  being  a  port  to  the  southward  of  Lis- 
bon; consequently  lying  direcdy  out  of  the  course  of  the  voyage  to  England; 
Lord  Kenyon  was  of  opinion  that  the  liberty,  given  by  this  policy,  must  be 
restrained  to  a  permission  to  call  at  some  port  to  the  northward  of  Lisbon,  in 
the  course  of  the  voyage  to  England;  and  that  by  going  to  the  southward  the 
assured  had  been  guilty  of  a  deviation. 

So  in  Gairdner  v.  Senhouse,  (b)  after  the  voyage  was  described,  a  leave 
was  given  to  call  at  all  or  any  of  the  TVest  India  Islands,  Domingo,  and  Ja- 
maica excepted,  the  assured  must  take  the  ports  in  the  succession  in  which 
they  occur  in  the  voyage.  And  in  Ranken  v.  Reeve,  (c)  on  a  voyage  at  and 
from  Africa  to  the  Canaries,  Madeira,  and  Lisbon,  with  liberty  to  touch, 
stay,  and  trade  at  all  ports,  &c.,  in  the  voyage,  it  was  held  that  after  she  had 
moored  at  anchor  twenty -four  hours  in  a  port  in  Africa,  she  could  not  proceed 

(a)  6  T.  R.  521.  {h)  At  Guild.  Hil.  Sit.  1741. 

(a)  Sit.  at  Guild,  after  Mich.  T.  1797.     Park  Ins.  G27. 

(i)  3  Taunt.  16.  (c)  Hil.  54  Geo.  3,  B.  R.     Park  Ins.  627. 


DEVIATION    FROM   THE    VOYAGE    INSURED.  133 

to  the  southward,  but  northwards  towards  Europe,  the  object  being  only  to 
protect  deviations  in  the  course  of  the  voyas^e  insured. 

These  cases  seem  clearly  to  have  decided  that  where  several  termini  are  men- 
tioned in  a  policy  of  insurance,  as  the  objects  of  the  assured,  those  ports  must 
be  gone  to  in  the  *order  in  which  they  are  mentioned  in  the  policy,  ^  r^o^o  n 
otherwise  the  assured  will  be  guilty  of  a  deviation.  L  J 

But  ill  the  case  of  Lambert  v,  Liddard,  (a)  on  a  policy  at  and  from  Per- 
nambuco,  or  any  other  port  or  ports  in  the  Brazils,  to  London,  beginning  the 
adventure  from  the  loading  goods  on  board  the  ship,  on  the  termination  of  her 
cruise,  and  preparing  for  her  voyage  to  London:  the  ship  having  finished  her 
cruise,  came  to  Pernambuco,  and  endeavoured  to  procure  a  cargo,  and  failed 
in  doing  so.  She  then  proceeded  for  St.  Salvador,  in  the  Brazils,  but  out  of 
the  course  to  I^ondon,  and  was  lost  on  her  way  thither.  The  Court  held,  that 
the  policy  attached  at  Pernambiico,  this  being  the  beginning  of  her  ti-ading 
voyage,  and  endeavouring  to  procure  a  cargo :  Ihat  the  going  to  St.  Salvador 
was  no  deviation,  the  policy  running  in  these  words,  "or  any  other  port  or 
ports,"  and  therein  differing  from  Hogg  v.  Horner:  and  that  the  voyage  was 
well  described  in  the  declaration  as  from  Pernambiico. 

In  an  action  of  Marsden  v.  Reid,  {b)  on  a  policy  on  goods  on  board  the 
Frankly n,  at  and  from  LJverpool  to  Palermo,  Messina,  Naples  and  Leghorn; 
the  ship  took  in  goods  and  was  cleared  out  from  Naples  only,  and  had  no  goods 
on  board  for  any  other  place,  Leghorn  being  known  to  be  in  the  hands  of  the 
French  soon  after  the  policy  was  effected.  The  ship  was  captured  in  the  Bay 
of  Biscay  by  the  French,  and  consequently  before  the  dividing  point  to  any  of 
the  places  mentioned  in  the  policy.  The  plaintiff  recovered  a  verdict.  A  new 
trial  was  moved  for  on  two  grounds,  one  of  which  only  is  material  here,  namely.  • 
that  there  was  no  inception  of  the  voyage  insured,  which  was  to  Palermo,  Mes- 
sina, and  Naples,  in  the  order  in  which  they  stand  in  the  policy,  as  in  Beat- 
son  V.  Haworth,  (c)  wlaereas,  here  it  appeared  that  the  vessel  never  intended 
to  go  to  Palermo  or  Messina,  but  only  "^to  Naples,  for  which  p  ^940  -1 
place  she  took  in  her  loading  and  cleared  out.  L  '      J 

Lord  Ellenborough  said — "This  is  not  a  question  of  deviation;  to  raise 
which,  it  must  be  assumed  that  the  voyage  insured  was  commenced,  and  that 
the  ship  afterwards  went  out  of  her  track,  on  that  voyage ;  but  there  is  no 
question  of  that  sort  here ;  the  loss  happened  before  the  dividing  point  to  any 
of  the  places  named  in  the  policy :  the  only  question  is,  whether  there  were 
any  inception  of  the  voyage  insured.^  and  I  am  clear  that  there  Avas.  I  think 
that  the  voyage  insured  to  Palermo,  Messina  and  Naples,  meant  a  voyage  to 
all  or  any  of  the  places  named :  with  this  reserve  only,  that  if  the  vessel  went 
to  more  than  one  place,  she  must  visit  them  in  the  order  described  in  the  policy. 
The  assured  must  only  not  invert  the  order  of  the  places,  as  they  stand  in  the 
policy.  And  that  was  in  truth  all  that  was  decided  in  the  case  of  Beatson  v. 
Haworth;  where  it  must  be  remembered  that  the  vessel  had  taken  in  goods  for 
both  the  places  named,  Leith  and  Cockenzie,  and  it  was  assumed  that  she  put 
into  Cockenzie,  first,  in  her  way  to  Leith,  where  she  was  to  discharge  the  rest 
of  her  cargo. 

In  the  case  oi  Met  calf  v.  Parry,  [a)  in  an  assurance  "at  and  from  Antigua 
to  London,  with  liberty  to  call  at  all  or  any  of  the  West  India  islands,  Ja- 
maica included,"  it  was  contended,  that  the  calling  must  be  in  their  natural 
order ;  and  that  as  St.  Kitts  did  not  lie  between  Antigua  and  London,  calling 

(o)   1  Marsh.  149  ;  5  Taunt.  480  ;  and  see  Bragg  v.  Anderson,  4  Taunt.  229. 
(i)  3  East,  572.  (c)  Ante,  p.  240. 

(a)  4  Camp.  123. 


134  DEVIATION    FROM   THE    VOYAGE    INSURED. 

there  was  a  deviation.  But  Lord  Chief  Justice  Gibbs  was  of  opinion,  that  as 
the  assured  hnd  leave  to  ^o  to  Jamaica,  five  hundred  miles  out  of  course,  it 
was  clear  the  parties  intended  that  the  assured  might  stop  at  any  of  them,  though 
not  in  course,  [b) 

However  short  the  time  of  deviation  may  he.  if  only  for  a  single  night,  or 
even  for  an  hour;  the  underwriter  is  equally  discharged,  as  if  there  had  been 
r  ^9AA  "1  "^  I'e^'iation  for  weeks  *or  months ;  for  the  condition  being  once 
•-  J  broken,  no  subsequent  act  can  ever  make  it  good. 

In  the  case  of  Cock  v.  Tnwmon,  (a)  the  ship  George  was  bound  from  Cork 
io  Jamaica  with  a  convoy  in  the  course  of  a  war:  the  captain,  in  consort  with 
two  other  vessels,  took  advantage  of  the  night,  and  being  ships  of  force,  cruised, 
and  thereby  deviated  out  of  the  direct  course  of  their  voyage,  in  hopes  of  meet- 
ing with  a  prize.  Lord  Camden  clearly  held,  and  a  special  jury  of  merchants, 
agreeably  to  his  directions,  determined,  that  from  the  moment  the  George  de- 
serted or  deviated  from  the  direct  voyage  to  Jamaica,  the  policy  was  discharged. 

In  a  case  of  Jolhi  v.  Walker,  {b)  however,  it  seemed  to  be  the  general  opin- 
ion of  Lord  MansfiekU  and  a  special  jury,  and  was  sworn  to  be  the  usage,  by 
several  witnesses,  that  if  a  merchant  ship  carry  letters  of  marque,  she  may 
chase  an  enemy,  though  she  may  not  cruise,  without  being  deemed  guilty  of  a 
deviation. 

This  was  an  insurance  on  goods  and  the  ship  Mary  from  JjOndon  to  Cork 
and  the  iVest  Indies,  and  the  ship  was  warranted  to  proceed  on  that  voyage 
with  sixty  men,  and  equipped  with  twenty-two  guns,  and  eighteen  and  six 
pound  shot,  and  sheathed  with  copper.  The  quesdon  was,  whether  a  ship 
having  letters  of  marque  could  chase  an  enemy's  ship  without  being  said  to 
have  deviated.^  The  facts  were  that  the  ship  sailed  with  letters  of  marque  on 
board  against  the  French,  Spaniard  and  ,/Imericans,  and  was  ordered  not  to 
cruise;  but  to  proceed  direct  on  her  voyage  to  the  TFest  Indies;  but  in  the 
event  of  her  meeting  or  coming  widiin  sight  of  any  ship  belonging  to  the  enemy, 
she  was  to  chase,  take,  and  make  prize  of  such  enemy's  shij).  if  in  her  power. 
On  the  26th  of  December,  1780,  in  latitude  14.  22  N.  and  longitude  40.  52 
W.  at  midnight,  a  sail  was  discovered,  whereupon  the  Mary  gave  chase,  and 
on  such  vessel's  perceiving  the  Mary,  she  hauled  her  wind  to  the  northward, 
r  ^od.^  1  '^"^  *^^^  Mary  hauled  up  after  her,  and  at  one  o'clock  lost  sight 
L  J  of  her;  but  the  Mary  still  stood  to  the  northward,  and  at  live  a.  m. 

saw  such  vessel  again  on  the  lee-bow  two  miles  off.  The  chase  was  renewed, 
and  at  six  a.  m.  tlie  Mary  came  up  within  three-quarters  of  a  mile  of  the  ves- 
sel, when  she  hoisted  Spanish  colours,  and  at  lialf-past  seven  the  Mnry  came 
up  within  pistol  shot  and  began  to  engage,  which  engagement  continued  till  ten 
o'clock,  wiu;n  the  Spanish  vessel  sheered  off,  leaving  the  Mary  much  disabled. 
She  afterwards  steered  her  course  to  the  westward,  and  was  taken  on  the  5th 
of  Jammry  1781,  by  an  Jlmerican  privateer.  It  was  agreed  on  all  hands, 
that  a  ship  in  such  circumstances  might  not  cruise ;  and  several  witnesses  spoke 
to  the  usage  and  practice  of  ships,  wiiich  carried  letters  of  marque,  chasing  an 
enemy.  It  was  admitted,  on  the  part  of  the  insurers,  that  if  an  enemy  came 
in  the  way,  the  slii|)  must  defend  or  engage:  but  contended,  that  if  the  letter 
of  marque  lost  sight  of  the  enemy,  that  was  no  longer  chasing,  but  cruising. 
Lord  Mansfield  left  it  upon  the  evidence  to  the  jury,  who  found  for  the  plain- 
tiffs. 

(//)  Melliwh  V.  Andrews,  16  East,  312,  and  3  Maulc  &  S.  27,  confirmed  in  the  Exche- 
quer (Jhan>l)er,  5  Taunt.  400. 

(f/)    IJelbre  Lord  Camden,  (L  J.  Park  Ins.  630. 
\b)  At  Guild.  Easter  Vac.  1781.     Park  Ins.  630. 


DEVIATION    FROM    THE    VOYAGE    INSURED.  135 

And  in  the  casR  of  Lmorence  v.  Sydehofham,  (a)  a  merchant-ship  employed 
in  commercial  objects,  was  insured  witii  or  without  letters  of  niarfpu',  wiih  a 
liberty  to  chase,  capture  and  man  prizes,  the  captain  is  not  justified,  after  he 
has  captured  a  vessel,  in  the  further  prosecution  of  his  voya<rp,  in  shortening 
sail  and  lyin^  to,  in  order  to  let  the  prize  keep  up  with  him,  for  the  purpose  of 
protcctinjr  her,  as  a  convoy,  into  port,  in  order  to  have  lier  condemned,  though 
such  port  he  witiiin  the  voyage  insured  ;  for  that  would  be  to  extend  the  mean- 
ing beyond  what  the  parues  have  themselves  expressed,  by  giving  thorn  leave 
to  convoy,  as  well  as  to  chase,  capture  and  man,  which  words  alone  extend  the 
rights  of  the  assured  beyond  the  common  terms  of  indemnity  m  the  policy. 

lint  in  another  case  of  Parr  v.  Anderson,  (b)  wliicli  was  -also  p  ^^^g  -, 
the  case  of  an  insurance  on  a  commercial  adventure,  at  and  from  L 
Livrrpool  to  .Africa,  &c.,  with  or  without  letters  of  marque,  it  became  a  ques- 
tion, whether  those  words  enabled  the  ship  to  chase  for  the  purpose  of  hostile 
attack  and  capture,  all  vessels  whensoever  or  wheresoever  descried,  provided 
the  original  pursuit  commences  from  a  point  in  the  course  of  the  voyage,  with- 
out suspending  or  superseding  wholly  the  objects,  destination,  and  limits  of 
the  commercial  adventure  described  in  the  policy:  or  whether  they  are  to  be 
confined  to  a  leave  to  employ  force  for  the  purpose  of  defence,  (including  a 
liberty  of  attack  and  chase)  onlv  so  far  as  they  may  fairly  be  supposed  to  pro- 
mote ultimate  security.  The  Court  were  of  opinion,  diat  the  case  of  JoUy  v. 
Walker  did  not  afford  any  construction  of  a  j)olicy  containing  the  liberty  in 
question,  inasmuch  as  that  policy  contained  no  such  liberty.  'I'herefore,  in  the 
absence  of  any  determination  on  the  effect  of  such  words,  the  Court  sent  the 
case  to  a  second  trial,  in  order  to  ascertain,  as  a  question  of  fact,  in  what  man- 
ner the  parties  to  such  contracts  have  acted  upon  them  in  former  instances,  by- 
paying  losses,  where  deviations  of  the  kind  now  in  question  have  happened; 
and  whether  they  have  as  yet  obtained  in  use  and  practice,  as  between  assured 
and  assurers,  any  and  what  known  and  definite  import. 

The  late  Mr.  J.  Park  here  says,  that  "this  case  came  on  to  be  tried  again 
before  Lord  Ellenhorovgh  and  a  special  jury,  (c)  From  my  memory  of  what 
passed,  having  been  one  of  the  counsel  in  it,  aided  by  a  note  which  I  have 
seen,  his  Lordship  was  strongly  of  opinion  on  the  evidence,  that  this  vessel 
had  cruised,  which  of  course,  if  the  jury  so  thought,  would  put  an  end  to  the 
question.  The  jury  found  for  the  defendant;  and  I  have  no  doubt  upon  that 
ground,  from  the  evidence  of  tlie  plaintiff's  own  witnesses." 

Consistently  with  this  principle,  that  the  Court  will  not  *extend  p  ,^^^„  -, 
the  meaninff  of  a  license  beyond  what  the  parties  have  themselves  L  -^ 

expressed,  and.  tlierefore,  in  the  case  of  Jarrat  v.  JVard,  {d)  where  leave  was 
granted  by  the  policy  to  a  merchant-ship  engaged  on  a  fishing  voyage  to  cruise 
for,  chase,  capture,  man,  and  see  into  port  any  ship  or  ships  of  enemies.  Lord 
EllenboroKgh  was  of  opinion  that  such  a  permission  did  not  authorize  tlie  ship 
to  remain  in  port  till  a  prize  receives  necessary  repair,  which  she  could  not 
have  had  otherwise :  at  most  she  might  have  entered  the  port  with  the  prize, 
seen  her  safely  moored,  and  perhaps  have  stopped  a  reasonable  time  to  give 
directions  for  proceeding  on  the  final  destination.  For  if  the  captor  were  per- 
mitted to  stay  till  the  prize  was  repaired,  the  voyage  might  never  terminate,  for 
on  leaving  St.  Catharine's,  (the  port  to  which  this  prize  had  been  carried) 
another  prize  might  have  been  taken,  standing  equally  in  want  of  repairs  ;  after- 
wards a  third,  and  so  on  in  an  infinite  series.  "This,  therefore,"  said  Lord 
Ellenborough,  "turns  out  to  be  a  risk,  which  the  defendant  did  not  underwrite." 


(a)   6  Enst.  45.  (/>)  6  East,  202. 

(c)  Guildhall,  March  6,  1S05,     Park,  632.     (rf)   I  Camp.  263. 


136  DEVIATION    FROM   THE    VOYAGE    INSURED. 

And  in  the  case  of  Hibhert  v.  HaUiday,  {b)  it  was  held,  "that  liberty  given 
in  a  policy  on  a  fishing  voyage,  to  chase,  capture,  and  man  prizes,"  does  not 
authorize  the  ship  to  lie  by  nine  days  off  a  port,  waiting  for  an  enemy's  ship 
to  come  out,  when  she  should  have  completed  lier  cargo,  although  such  lying 
in  wait  was  within  the  limits  of  the  fishing  ground. 

In  a  case  of  Moss  v.  Byrom,  (c)  which  came  before  the  Court  of  King's 
Bench  upon  a  motion  for  a  new  trial,  the  Judges  were  unanimously  of  opin- 
ion, that  if  the  assured,  without  the  knowledge  of  the  underwriters,  take  out 
a  letter  of  marque,  (but  without  a  certificate,  Avhich  by  the  Prize  Act  of  the 
3.3  Geo.  c.  66,  s.  15,  is  absolutely  necessary  to  its  validity)  for  the  purpose  of 
inducing  the  seamen  to  enter,  and  without  any  intention  of  cruising,  this  does 
not  so  essentially  vary  the  risk  as  to  avoid  the  policy. 

r    *9iS     ~\      *'rhe  doctrine  that  a  voluntary  deviation  from  the  voyage  insured 
L  -J  vitiates  the  policy,  has   been  held  to  be  applicable  to  an  insurance 

upon  freight  as  well  as  to  an  insurance  upon  ship  and  goods. 

Thus  in  a  case  of  Murdock  v.  Potts^  (a)  upon  a  policy  of  assurance  on 
freight  of  the  ship  Bethiuh  at  and  from  Bordeaux  to  Fir2;'inia,  warranted 
American  ship  and  property :  the  declaration  alleged  that  tlie  ship  was  an 
American  ship  and  the  property  of  American  subjects.  The  plaintiff  proved 
tlie  ship  to  be  American,  and  it  was  to  have  l^een  contended  upon  the  part  of 
the  defendant,  that  the  warranty  extended  to  the  goods  on  board  as  well  as  to 
the  ship  :  but  upon  the  evidence  it  appeared  that  tlie  goods,  whether  American 
or  not,  were  to  be  carried  in  the  ship  from  Bordeaux  to  St.  Domingo,  and 
that  she  was  only  to  call  at  Norfolk  in  Virginia  for  orders ;  this  rendered  it 
unnecessary  to  discuss  or  decide  tlie  question  upon  the  construction  of  the  war- 
ranty. Lord  Kenyon  being  of  opinion,  that  the  underwriters  upon  this  poUcy 
had  a  right  to  expect  that  the  goods,  upon  which  the  freight  was  payable,  were 
consigned  to  Virginia,  and  that  if  the  freight  was  payable  for  the  carriage  of 
them  from  Bordeaux  to  St.  Domingo,  the  underwriters  were  not  liable  for  the 
loss,  though  the  ship  was  to  call  at  Norfolk  for  orders,  the  freight  payable  being 
in  such  case  differeiit  from  the  freight  insured  :  plaintift'  was  nonsuited,  and  no 
application  was  made  to  set  it  aside. 

In  the  case  of  Taylor  v.  Wilson,  [b)  however,  it  was  held,  that  freight  might 
be  insured  from  St."^  Ubes  to  Portsmouth  only,  though  her  ultimate  destination 
was  Gottenlmrg,  but  meaning  to  stop  at  Portsmouth  for  convoy  in  her  way. 
It  was  said  in  the  commencement  of  this  subject,  that  a  deviation  meant  a 
voluntary  departure  from  the  voyage,  yet,  wherever  the  deviation  arises  from 
necessity,  force,  or  any  just  cause,  the  underwriter  still  remains  liable,  although 
the  course  of  the  voyage  is  altered,  (c) 

r  »24Q  1  '^''^'^  ''"^^  '^  illustrated  by  the  following  case  of  Elton  v.  Brog-^ 
L  J  den.  {a)     The  ship    Mediterranean  Avent  out  in  the  merchants' 

service  with  a  letter  of  marque,  and  bound  from  Bristol  to  Neirfoundland, 
insured  by  the  dcifendant.  In  her  voyage  she  took  a  prize,  and  returned  with 
it  to  Bristol,  and  received  back  a  proportional  part  of  the  premium.  Then 
another  j)olicy  was  made,  and  the  ship  set  out,  with  express  orders  from  the 
owners,  that  if  another  prize  was  taken,  the  captain  should  put  some  hands  on 
board  such  prize,  and  send  her  to  Bristol;  but  that  the  ship  in  question  should 
proceed  with  the  merchants'  goods.  Another  prize  was  taken  in  the  due  course 
of  the  voyage,  and  the  captain  gave  orders  to  some  of  the  crew  to  carry  her  to 


(b)  2  Taunt.  428.  (r)  6  T.  R.  379,  post, 

(a)  Sit.  at  Guild,  after  Trin.  T.  1795.      Park  Ins.  G34. 
(Ij)   15  East,  324.  (c)  Koccus,  Not.  52. 

(a)  2  Strange,  1264,  ;>os/. 


DEVIATION    FROM    THE    VOYAGE    INSURED.  137 

Bristol,  and  designed  to  go  on  to  Newfoundland:  but  the  crew  opposed  him, 
and  insisted  he  should  go  back,  though  he  acquainted  them  witli  his  orders ; 
upon  which  he  was  forced  to  submit,  and  on  his  return  his  own  sliip  was  taken, 
but  the  prize  got  in  safe.  And  now  in  an  action  against  the  underwriters,  it 
was  insisted,  tliat  this  was  such  a  deviation  as  discharged  them.  But  the 
Court  and  jury  held,  that  this  was  excused  l)y  the  force  upon  the  master, 
whicii  he  could  not  resist,  and  therefore  fell  within  the  excuse  of  necessity, 
which  had  always  been  allowed.  So  the  plaintiff  had  a  verdict  for  the  sum 
insured. 

So  also  in  the  case  of  Scott  v.  Thompson,  (b)  on  a  limited  policy  against  sea- 
risk  and  fire  only,  in  the  course  of  the  voyage  insured  from  Liverpool  to 
Amsterdam,  the  ship  was  carried  out  of  the  course  of  the  voyage  into  Fcd- 
mouth  by  a  king's  ship,  but  being  afterwards  released,  she  proceeded  towards 
her  destination,  and  the  cargo,  which  was  die  subject  of  the  insurance,  sus- 
tained sea-damage,  the  underwiiters  were  held  liable;  for  the  deviation,  which 
was  insisted  on  as  a  matter  of  defence,  was  not  voluntary  :  and  deviation  occa- 
sioned l)y  force,  and  deviation  by  necessity,  are  the  same,  for  necessity  is  force. 

*Foreign  writers  upon  this  subject  have  enumerated  the  various  p  *or^n  i 
circumstances,  which  will  operate  as  a  justification  to  the  insured,  *-  -^ 

for  leaving  tlie  direct  track  of  the  voyage,  upon  the  ground  of  necessity  and 
reasonable  cause,  such  as  to  repair  his  vessel,  to  escape  from  an  impending 
storm,  or  to  avoid  an  enemy.  («) 

1.  The  first  ground  of  necessity  which  justifies  a  deviation,  is  that  of  going 
into  a  port  to  repair.  If  a  ship  is  decayed,  and  goes  to  the  nearest  place  to 
refit,  it  is  no  deviation,  because  it  is  for  the  general  interest  of  all  concerned, 
and  consequently  for  that  of  the  underwriters,  that  the  ship  should  be  put  in  a 
proper  condition  capable  of  performing  the  voyage :  so  shewn  in  the  case  of 
Motteuux  and  others  v.  London  .Assurance.  (6) 

The  ship  Eyles  being  at  Bengal  in  the  year  1732,  the  owner  employed  a 
Mr.  Halhead  to  insure  this  ship  in  the  London  Listirance  Office  for  500/.,  the 
adventure  thereon  to  commence  from  her  arrival  at  Fort  Si.  George,  and  thence 
to  contiime  till  the  said  ship  should  arrive  at  London;  and  that  it  should  be 
lawful  for  the  said  ship  in  the  said  voyage,  to  stay  at  any  ports  or  places 
without  prejudice.  The  Eyles  came  to  Fort  St.  George  in  February,  1733, 
in  her  way  to  England;  but  being  leaky,  and  in  very  bad  condition,  upon  the 
unanimous  advice  of  the  governor,  council,  commanders  of  ships,  &c.,  she 
sailed  for  Bengal  to  be  refitted ;  and  after  being  sheathed,  in  her  return  upon 
her  homeward-bound  voyage,  she  struck  upon  the  Engilee  Sands,  and  was 
lost.  Evidence  was  read  on  the  part  of  the  plaintiffs,  to  prove  that  Bengal 
was  the  proper  place  to  refit,  and  that  the  ship  went  thither  for  that  reason ; 
that  this  was  a  voyage  of  necessity,  and  not  a  trading  voyage,  for  she  took 
nothing  on  board  but  water,  provisions,  and  ballast.  When  this  cause  came 
on  to  be  heard  before  Lord  Chancellor  Hardwicke,  he  refused  to  decide  it,  but 
directed  an  issue  at  law.  His  Lordship,  however,  observed,  that  the  general 
principles  laid  down  by  *the  plaintiffs'  counsel  were  right,  as  stress  p  ^f,,,  -, 
of  weather,  and  the  danger  of  proceeding  on  a  voyage,  -when  a  L  "  J 
ship  is  in  a  decayed  condition ;  and  in  such  a  case,  if  she  went  to  the  nearest 
place,  he  should  consider  it  equally  the  same,  as  if  she  had  been  repaired  at 
the  very  place  from  whence  the  voyage  was  to  commence,  according  to  the 
terms  of  the  policy,  and  no  deviation.     It  is  a  very  material  circumstance,  that 


{b)    1  N.  R.  181;  see  Forster  v.  Christie,  post, 
(a)  Roccus,  52;  Sauter  do  Assecur.  part  3,  n.  52. 
lb)  1  Atk.  545. 


138  DEVIATION    FROM    THE    VOYAGE    INSURED. 

tlie  jTovernor  ordered  the  lading  to  be  taken  oiU,  to  shew  the  necessity  of  the 
ship's  being  repaired ;  but  there  is  not  a  syllable  of  proof  why  she  might  not 
have  been  equally  repaired  at  Fort  St.  Geors^e.  His  Lordship,  therefore, 
directed  an  issue  to  try  whether  the  loss  in  Jufy,  1733,  was  a  loss  during  the 
voyage,  and  according  to  the  adventure  which  was  agreed  upon,  or  intended  to 
be  insured.  On  a  trial  at  Gidldhall,  in  the  Court  of  Common  Pleas,  the  jury 
Ibund  in  favour  of  the  plaintifl's. 

And  in  die  case  of  Weir  v.  Merdein^  (a)  if  a  ship  in  the  course  of  her  voy- 
:ige  appear  to  be  too  heavily  laden,  so  that  it  is  necessary  to  lighten  her,  she 
may  at  the  next  convenient  place  land  and  sell  part  of  her  cargo.  Or  if  she  be 
found  to  require  ballast,  she  may  at  a  convenient  place  take  ballast  on  board,  or 
even  goods  in  the  place  of  ballast. 

In  the  case  of  Guibert  v.  Read>ihuw\  {b)  was  an  action  on  a  policy  of  insu- 
rance on  the  Nana/,  at  and  from  La  Roc.heUe  to  the  coast  of  Jlfrica,  during 
her  stay  and  tradt?  there,  and  at  and  from  thence  to  her  port  of  discliarge  in  the 
island  of  .SY.  Domingo.  Three  days  after  the  ship  sailed  from  Im  JRochelle, 
she  met  with  a  gale,  which  strained  her  seams,  and  split  her  mizen-yard  and 
rigging.  'J'he  crew  came  in  a  body  to  the  captain,  desiring  for  the  preservation 
of  their  lives  to  make  to  some  port  to  repair.  The  vessel  being  a  new  one, 
and  the  captain  tinding  that  she  had  too  little  ballast,  complied,  and  put  into 
Lisbon,  the  nearest  port;  from  whence,  after  taking  in  five  hundred  rolls  of 
r  t^p.o  n  tobacco  as  ballast,  he  ■■proceeded  to  the  coast  of  Guinea,  traded 
L  J  there,   and  the  ship  was  afterwards  captured  in  the  sight  of  St. 

Domins;o  before  she  arrived.  The  defendant  insisted  that  going  into  Lisbon 
was  a  deviation,  and  called  witnesses,  who  were  of  opinion,  that  in  the  latitude 
in  which  the  storm  happened,  there  could  be  no  difficulty  in  repairing  all  the 
damage  the  vessel  was  described  to  have  received,  even  in  the  worst  weather, 
as  she  might  have  proceeded  to  the  coast  of  Jlfrica,  and  repaired  there  at  a  less 
expense;  and  that  a  ship,  loaded  like  that  in  question,  could  not  need  additional 
ballast.  On  the  cross-examination,  it  came  out  Uiat  the  premium  would  not 
have  varied  had  the  voyage  been  by  the  way  of  LJfibon. 

Lord  Mansfield  left  it  to  the  jury,  on  the  ground  of  necessity  to  go  to  Lis- 
bon for  repairs.  He  said,  that  niucii  depended  upon  the  circumstance,  that  no 
additional  premium  would  have  been  required  for  liberty  to  touch  there.  If  the 
jury  l)elieved  the  evidence  of  the  witnesses,  they  must  find  for  the  plaintiff,  for 
that  tlie  whole  of  tlie  defendant's  case  rested  merely  upon  surmise  and  suspi- 
cions alone.      'J'he  plaintiff  accordingly  had  a  verdict. 

3.  The  next  excuse  lor  leaving  the  direct  course  is  stress  of  weather. 
"Upon  this  point  the  rule  is  this,  that  wherever  a  ship,  in  order  to  escape  a 
storm,  goes  out  of  the  direct  course,  or  when  in  the  due  course  of  the  voyage, 
is  driven  out  of  it  by  stress  of  weather,  this  is  no  deviation;  because  it  was 
occasioned  by  the  act  of  God,  which,  by  a  maxim  of  law,  is  said  to  work  an 
injury  to  no  man.  It  has  also  bv.en  held,  that  if  a  storm  drive  a  ship  out  of  the 
course  of  her  voyage,  and  she  do  tlie  best  she  can  to  get  to  her  port  of  destina- 
tion, she  is  not  obliged  to  return  back  to  the  point  from  whence  she  was  driven. 
This  rule  is  exemplified  by  the  following  case."     Harrington  v.  Halkeld.  (a) 

In  an  action  on  a  policy  of  insurance  of  the  ship  .Atlantic,  warranted  to  sail 

with  convoy  from  England  to  St.  Kitts,  on  or  before  the  1st  o{  ./lugust;  the 

-,  question  was,  whether  tliere  'had  been  a  deviation  }      The  ship 

L      ^'^^     J  vvas  separated  from  her  convoy  by  a  storm.     The  captain  being 


(a)  2  B.  &  A.  320,  ante,  p.  127. 

\h)   Sit   in  Loud.  nil.  Vac.  1781.      Park  Ins.  (537. 

(a)  Sit.  in  Lond.  Midi.  Vac.  1778.     Park  Ins.  638. 


DEVIATION    FROM    THE    VOYAGE    INSURED.  139 

examined,  said,  liis  object,  after  his  separation,  invariably  was  to  gain  Sf.  Ki'fs, 
or  to  fall  in  with  the  convoy.  That  the  ship  was  taiven  by  an  Jhncrkan  pri- 
vateer in  lat.  34,  long.  59.  Several  captains  were  examined,  who  swore,  that 
they  would  have  taken  the  same  course  to  get  to  St.  Kiff.s,  or  regain  the  fleet. 

Lord  Manspdd — "'J'iie  single  question  is,  whether  the  caj)tain  was  taken 
as  he  was  going  to  St.  KUfs?  If  he  was  not  he  is  perjured.  The  account  he 
gives  is,  that  on  the  28th  o{  July  there  was  a  storm,  which  separated  the  fleet; 
that  he  did  all  he  could  to  get  to  Sf.  Kitts,  and  to  direct  his  course  so  as  to 
meet  liie  convoy  crossing.  'J'he  captain  ffoes  on  the  ground  not  to  reason,  but 
to  obey,  be  the  consequence  what  it  might.  He  knows  nothing  of  the  insu- 
rance:  he  says  to  himself,  "If  I  obey,  1  am  doing  right."  As  to  the  protest, 
I  do  not  see  that  it  contradicts  the  captain's  evidence.  Other  captains  have 
looked  at  the  log-book  or  journal ;  and  they  say,  they  would  have  held  the 
same  course." 

Verdict  for  the  plaintilT. 

In  the  case  of  DrUniey  v.  S/oddarf,  (a)  which  was  an  action  upon  the  case 
against  the  defendant,  for  not  having  insured  a  ship  and  cargo,  pursiuint  to  the 
orders  of  the  jilaintifF,  by  moans  whereof  he  was  damnified,  the  ship  having 
been  lost.  It  was  tried  before  Mr.  Justice  ]hdlci\  at  Gmldluill.  at  the  Sittings 
after  Trinity  Term,  178^5;  and  a  verdict  was  found  for  the  plaintiff. 

Upon  a  motion  for  a  new  trial,  the  facts  appeared  to  be  these  : — The  plaintiff", 

who  lived  at  -S7.  Ki'la^  wrote  a  letter  to  the  defendant,  dated  the  30lh  of  Jpri/^ 

1781,   informing  him   that  he  intended  to  purchase  a  ship,  and  olTering  the 

defendant  a  share.     On  the  4th  of  May,  1781,  he  wrote  a  second  letter  to  the 

defendant,  acquainting  him  that  he  had  purchased  the  ship,  but  had  only  a  share 

in  it  himself,  the  ^residue  being  divided  into  three  or  four  more  ^    ^,^    .     -, 

shares,  one  of  whicli  he  had  reserved  for  the  defendant,  in  case  he  L      "         -I 

should  wish  to  be  concerned  ;  and   directing  an  insurance  upon  the  ship  at  and 

from  Sf.  Kiffs  to  I^ondon,  warranted  to  sail  with  the  convoy.      On  the  28th  of 

Jime,  the  defendant  wrote  to  the  plaintifl!',  that  he  had  no  objection  to  a  fourth, 

or  a  share  equal  to  the  plaintifl^'s.     On  the  3rd  of  July,  the  plaintiff  informed 

the  defendant,  that  the  ship  had  left  the  port  to  take  in  her  cargo :  that  she  let 

go  an  anchor  at  Sandy  Point,  but  as  the  wind  blew  fresh,  she  drove  out  and 

could  not  come  in  again ;  that  she  was  obliged  to  go  to  St.  Eusiafhrs,  and  he 

therefore  hoped  that  the  defendant  had  not  neglected  to  make  the  insurance,  for 

fear  of  accidents.      The  defendant,  on  the   19th  of  July,  wrote  thus  to  the 

plaintiff:  "The  insurance  you  ordered  shall  be  done."     Plaintiff  again,  on  the 

25lh  of  July,  wrote,  that  the  Friendship  did  all  in  her  power  to  get  up  from 

St.  Eustatius,  but  could  not,  and  therefore  he  sold  her  to  Mr.  Ross,  alEusta- 

tius.     I  have  already  transcribed  as  much  of  the  several  letters  as  are  material 

to  the  subject  of  this  section;  in  addition  to  which  the  following  facts  appeared 

in  evidence: — That  the  ship  Friendship  had  sailed  from  St.  Eustalivs,  on  the 

1st  of  Aus^ust,  with  the  convoy,  and  that  she  had  afterwards  foundered  at  sea; 

that  St.  Eastatius  is  in  the  direct  road  to  London  from   St.   Kitts,  and  the 

convoy  from  St.  Kiits  always  looked  into  -SV.  Eustatitis,  to  take  up  any  ships 

that  might  he  there ;  but  if  the  Friendship  had  sailed  from  St.  Kitis,  she  must 

have  gone  by  Eustutius;  but  would  not  have  stopped  there  :  tliat  when  she  was 

driven  to  St.  Eustitfins,  after  making  several  efforts  to  get  back  to  Sf,  Eitts  to 

finish  her  loadiii'i,  and  findin"-  she  could  not  succeed,  she  then  took  in  the  rest 

of  her  loading  at  ^S7.  Eusfntins. 

At  the  trial,  several  grounds  of  defence  were  made;  but  the  only  one  mate- 
rial for  our  consideration  was,  that  the  remaining  at  St.  Eustutius,  and  not 


(a)    1  T.  R.  22. 


140  DEVIATION    FROM    THE    VOYAGE    INSURED. 

going  back  to  .57.  Kilts,  was  a  deviation.  The  learned  Judge,  who  tried  the 
P  ^  _  -,  cause,  was  of  opinion  that  it  was  not  a  deviation,  being  occasioned 
L  ■  ■^^^  J  *|-,y  stress  of  weather.  Upon  this  ground,  amongst  others,  the 
motion  for  a  new  trial  was  founded.      After  argument  at  the  Bar, 

Lord  Mamficld  said,— "  The  only  material  question  is,  Whether  there  is  a 
deviation  in  this  case.^  and  that  depends  on  the  evidence.  If  a  storm  drive  a 
ship  out  of  her  voyage  into  any  port,  and  being  there  she  does  the  best  she  can 
to  get  to  her  port  of  destination,  she  is  not  obliged  to  return  back  to  the  point 
from  whence  she  was  driven;  but  here  the  witnesses  say,  she  tried  to  get  back 
to  St.  Kitts,  and  could  not :  and  it  is  a  much  easier  navigation  to  go  direcdy 
from  St.  Eustatius  to  London,  than  to  go  back  to  St.  Kitts  first.  And  as  to 
the  taking  in  the  cargo  at  St.  Eiistatim^  I  do  not  find  that  the  ship  lost  any 
time  by  it.  Every  thing  is  the  effect  of  the  storm,  and  occasioned  by  it.  This 
is  the  only  point  on  which  I  had  any  doubt,  and  it  required  some  consideration. 
It  was  a  question,  which  was  proper  to  be  left  to  a  jury,  whedier  this  was  the 
same  voyage  or  not,  and  they  have  determined  it." 

But  in  every  case  in  which  the  excuse  of  necessity  is  pleaded,  whether  it 
arise  from  the  act  of  God  or  from  any  other  insurmountable  cause,  it  must  be 
clearly  made  apparent  that  the  deviation  was  entirely  in  consequence  of  such 
causeji  and  that  was  no  default  on  the  part  of  the  assured  or  the  master  of  the 
ship. 

This  principle  of  the  rule  in  these  cases  was  confirmed  in  a  case  before  Lord 
Eldon,  when  Lord  Chief  Justice  of  the  Common  Pleas,  in  the  case  of  Wolfe 
v.  Cluggen.  (a)  The  insurance  was  from  Altona  to  Surinam,  the  defence 
made  was  "deviation,"  the  vessel  having  put  into  Plymouth,  out  of  the  course 
of  the  voyage,  and  remained  there  fourteen  days.  The  answer  on  the  part  of 
the  plaintiff  was,  that  the  captain  was  taken  ill  with  a  severe  fit  of  the  gravel, 
and  that  the  mate  having  pricked  his  finger,  by  accident,  his  hand  and  arm 
^  "1  swellell  to  such  a  degree,  as  to  render  him  incapable  of  *doing  his 

L  ■  ''^^"  J  duty,  and  that  they  had  put  into  Plymouth  for  the  purpose  of  pro- 
curino-  medical  assistance.  These  facts,  as  to  the  captain's  and  mate's  illness, 
and  their  application  to  a  surgeon,  were  proved  :  but  it  also  appeared,  on  cross- 
examination,  that  the  surgeon  of  the  ship  was  unprovided  with  proper  instru- 
ments and  medicines.      He  was  not  called. 

Lord  Eldon  said,  he  was  of  opinion  that  if  by  the  visitation  of  God  so  many 
of  the  crew,  who  would  otherwise  have  been  sufficient,  became  so  afflicted 
with  sickness,  as  to  be  incapable  of  navigating  the  ship,  such  an  illness  of  the 
crew  was  a  necessity  which  might  justify  a  deviation:  but  when  it  was  set  up 
as  a  justification  of  a  deviation,  he  thought  it  incumbent  on  the  plaintiff'  to  shew 
that  lie  had  so  far  provided  ngainst  such  events,  by  every  proper  precaution, 
such  as  having  medicines  for  the  voyage,  as  much  as  he  was  bound  with  respect 
to  the  tightness  of  the  ship.  It  was  in  evidence  that  a  surgeon  was  necessary 
in  such  voyages :  if,  thereiore,  sickness  was  to  be  set  up  as  an  excuse  for  devi- 
ation, the  plaintiff  should  shew  that  the  surgeon  was  provided  with  such  medi- 
cines and  instruments  as  would  probably  become  necessary  in  the  course  of  the 
voyage,  to  meet  the  common  casualties  of  the  mariners.  He  was  also  of 
opinion,  that  the  necessity  for  going  into  port  ought  to  be  made  out  by  the 
plaintiif  beyond  all  possibility  of  doubt,  and  that  it  arose  and  existed  without 
any  default  of  the  master  or  party  insuring :  and  if  they  came  in  for  medical 
aid,  he  should  expect  medical  men  to  be  called  to  prove  that  such  necessity 
existed.  That  had  not  been  done  in  the  case  then  before  him,  and  the  plaintiff 
must  be  nonsuited." 


(a)  3  Esp.  257. 


DEVIATION    FROM    THE    VOYAGE    INSURED.  Ml 

3.  A  deviation  may  also  be  justified,  if  done  to  avoid  an  enemy,  or  seek  for 
convoy;  because  it  is  in  truth  no  deviation  to  j{0  out  of  the  course  of  the  voy- 
age, in  order  to  avoid  dantrer,  or  to  obtain  protection  ao-ainst  it. 

In  an  action  upon  a  policy,  in  the  case  of  Bond  v.  Gonsalen,  (d)  wliicli  was 
to  insure  tlie  JFllliam  GaUcy  in  a  voyage  *from  Bremen  to  the  ^  #0,-7  -1 
port  of  London^  warranted  to  depart  widi  convoy;  the  case  was  L  '  J 
this : — The  G(dley  set  sail  from  Bremen,  under  the  convoy  of  a  Dulch  man- 
of-war  to  the  Elbe,  where  they  were  joined  by  two  other  Dulch  men-of-war, 
and  several  Dutch  and  English  merchant  ships,  whence  they  sailed  to  the 
TexeU  where  they  found  a  squadron  of  English  men-of-war  and  an  admiral. 
After  a  stay  of  nine  weeks,  they  set  out  from  the  TexeU  and  the  Gallei/  was 
separated  in  a  storm,  and  taken  by  a  French  privateer,  taken  again  by  a  Dutch 
privateer,  and  paid  80/.  salvage. 

It  was  ruled  by  Lord  Chief  Justice  Holt,  that  the  voyage  ought  to  be  accord- 
ing to  usage,  and  that  their  going  to  the  Elbe,  though  in  fact  out  of  the  way, 
was  no  deviation,  for  till  after  the  year  1703,  there  was  no  convoy  Ibr  ships 
direcdy  from  Bremen  to  London.     And  the  plaintiff  had  a  verdict. 

And  in  the  cases  of  Gordon  v.  Morley,  and  Campbell  v.  Bordiru,  (a)  on 
an  insurance  from  London  to  Gibr(dtar,  warranted  to  depart  with  convoy,  it 
appeared  there  was  a  convoy  appointed  for  that  trade  at  Spithead:  and  the 
ship  Ranger  having  tried  for  convoy  in  the  Downs,  proceeded  to  Spithead, 
and  was  taken  in  her  way  thither.  The  insurers  insisted  diat  this  being  ttie 
time  of  a  French  war,  the  ship  should  not  have  ventured  througli  the  CJKmnel, 
but  have  waited  in  the  Doivns  for  an  occasional  convoy.  And  many  merchants 
and  office-keepers  were  examined  to  that  purpose. 

But  Lord  Chief  Justice  Lee  held  that  the  ship  was  to  be  considered  as  under 
the  defendant's  insurance  to  a  place  of  general  rendezvous,  according  to  the 
interpretation  of  the  words  warranted  to  depart  with  convoy.  And  if  the  par- 
ties meant  to  vary  the  insurance  from  what  is  commonly  understood,  they 
should  have  particularised  her  departure  with  convoy  from  the  Doivns.  The 
juries  were  composed  of  merchants ;  and  in  both  cases  they  found  for  the 
plaintiffs  upon  the  strength  of  this  direction. 

In  the  case  of  Bond  against  Nutt,  {b)  in  which  the  material  ^     .  -, 

^question  was,  whether  a  warranty  had  or  had  not  been  complied  L  J 

with,  the  point  of  deviation  for  the  purpose  of  procuring  convoy  also  came 
under  the  consideration  of  the  Court.  Upon  that  occasion  Lord  Mansfield 
and  the  whole  Court  held,  that  if  a  ship  go  to  the  usual  place  of  rendezvous, 
for  the  sake  of  joining  convoy  there  ready,  though  such  place  be  out  of  the 
direct  course  of  the  voyage,  it  is  no  deviation. 

And  in  a  subsequent  case  of  Enderby  v.  Fletcher,  (a)  the  only  question 
was,  whether  there  was  a  deviation  or  not  ?  Lord  Mansfield  there  directed 
the  jury  to  find  for  the  plaintiffs,  if  they  believed  that  the  captain  fairly  and 
bond  fide  acted  according  to  the  best  of  his  judgment;  that  he  had  no  other 
view  or  motive  but  to  come  the  safest  way  home,  and  to  meet  with  convoy: 
for  tiiat  it  was  no  deviation  to  go  out  of  the  way  to  avoid  danger. 

AVhere  in  the  case  of  Salisbury  v.  Townson,  {b)  a  ship  was  insured  from 
Liverpool  to  Jamaica,  and  had  put  into  the  Isle  of  Man,  it  appeared  that 
there  were  some  intances  of  the  Liverpool  ships  putting  in  there,  but  it  was  not 
the  settled,  common,  established,  and  direct  usage  of  trade  :  it  was  held  to  be 

(d)  2  Salk.  445.  (a)  2  Stra.  1265,  ante,  198. 

(A)  Cowp.  Rep.  601. 

(a)  Sit.  in  Lond.  Trin.  Vac.  1780;  Park  Ins.  646. 

(I))  Park  Ins.  647. 


142  DEVIATION    FROM    THE    VOYAGE    INSURED. 

a  deviation,  and  the  underwriters  were  discharged  from  any  loss  that  happened 
subsequent  to  the  deviation. 

In  the  case  of  Lawrence  v.  Syilehofham.  (c)  Mr.  .T.  Lawrence. — "  As  to 
deviation  for  the  purpose  of  succouring  ships  at  sea  in  distress,  it  is  for  the 
comtnon  advantnge  of  all  persons,  underwriters  and  others,  to  give  and  receive 
assistance  to  and  from  eacli  otlier  in  distress." 

See  the  judgment  of  Sir  W.  Scott  in  the  Beaver.  {(I)  And  see  the  case  of 
the  J'inc.  (e)  In  .^imerlca,  it  has  been  held  that  such  deviation  does  not  create 
a  forfeiture  of  the  policy.  (/) 

It  may  be  considered  now  settled  hy  a  variety  of  recent  cases,  that  a  liberty 
r  *9k;q  t  "  ^'^  touch  and  slay  at  any  ports  or  places  *whatsoever,  for  all 
L  ■'  purposes,   must  be  taken  to  mean,  for  some  purpose  connected 

with  the  voyage,  (a) 

So  also  if  a  ship  be  insured  upon  a  trading  voyage,  it  is  incumbent  on  the 
parties  assured,  to  cirry  on  that  trade  with  usual  and  reasonable  expedition, 
otherwise  their  conduct  will  amount  to  a  deviation,  and  discharge  the  policy. 

Thus,  in  the  case  of  Hartley  v.  Bas;^^in,  (b)  an  action  by  the  assured 
against  an  underwriter  on  a  policy  of  insurance  on  the  ship  Blossom^  at  and 
from  the  coast  ol'  Jlfrica  to  the  IVest  Lidies,  with  liberty  to  exchange  goods 
and  slaves ;  a  verdict  was  given  for  the  plaintiff.  But  upon  a  rule  being 
obtained  to  shew  cause  why  there  should  not  be  a  new  trial,  it  appeared  that 
there  liad  beiMi  a  great  deal  of  contradictory  evidence,  and  many  points  started 
at  the  trial ;  but  the  OiUestion  now  made  was,  whether  the  plaintitf,  by  the  use 
ho  made  of  the  vessel  on  the  coast  of  ^^frica,  and  tlie  delay  he  there  occa- 
sioned, was  not  the  cause  of  the  loss;  that  is,  whether  he  did  not  make  such 
use  of  her  dm-ing  lier  stay  on  the  coast,  contrary  to  the  design  of  the  policy, 
as  amounted  to  a  deviation.^ 

It  appeared  in  evidence,  that  this  ship  stayed  on  the  coast  from  v^us^ust  to 
March;  that  she  was  employed  in  receiving  slaves  on  board,  tlie  produce  of 
the  cargoes  of  otlier  ships,  which  were  afterwards  put  on  board  other  ships, 
and  sent  to  the  West  Indies;  that  this  is  the  employment  of  Avhat  they  call  a 
factorj/  ship;  but  that  a  regular  factory  ship  is  thatched  and  covered,  and 
receives  the  slaves  till  a  suflicicnt  number  is  collected  to  send  away  in  the 
vessels ;  but  it  did  not  appear  that  any  slaves,  the  produce  of  the  Blossom^ s 
own  cargo,  were  sent  :iway  in  other  vessels,  but  that  her  stay  there  was  several 
months  beyond  tlu;  usual  stay  of  ships  in  that  trade.  Aftei  argument  at  the 
Bar, 

r  *260  1  ^I^^""^^  Mansfu'Jd  said — "  When  different  points  are  agitated  at 
J  a  trial,  and  a  great  deal  of  evidence  applied  to  each,  and  the  coun- 
sel go  out  of  the  cause,  it  is  not  to  be  wondered  at,  if  juries  should  lo' e  their 
attention  to  the  material  point.  The  great  advantage  of  a  motion  foi  a  new 
trial  is,  that  after  argument  on  the  motion,  the  cause  goes  down  aga  n,  win- 
nowed from  the  chair  of  the  first  trial.  The  single  point  here  is.  whether 
there  has  not  been  what  is  equivalent  to  a  deviation,  whether  the  risk  h-'s  not 
been  varied  .='  It  is  not  matcriiil  whether  or  not  the  risk  has  been  greater.  Tf 
a  ship  insured  for  a  trade,  is   turned  mto  a  iloaling  warehouse,  or  a  factory 


(r)  6  East,  p.  .'>4.  (r/)  n  l?ol).  A.  R.  292. 

{r)  2  Hiip;iT    345,  and  Waterloo,  2  Dod.  A.  K.  443. 

(/)   Kent's  Com.  on  tiic  Law  of  .\mcrica,  vol.  iii,  p.  10. 

(')  S.-c  lianghornc  v.  Allnutt,  4  Taunt.  519.  Hurkcr  v.  Allnutt,  15  East,  276.  Solly 
V.  Whitmorc,  5  B.  &  A.  45.  IJottomlcy  v.  Bovill,  5  13.  &  (;.  210  Warre  v  Miller  4 
B.  iSc  C.  53R,  (,„lp,  p.  17').  ■  ' 

{!>)  H.  It.  Mich.  22  Geo  3.  Park  Ins.  652.  See  also  Williams  v.  Shec.  3  Car:p. 
469.     Hammond  v.  Rcid,  4  B.  &  A.  72. 


DEVIATION    FROM    THE    VOYAGE    INSURED.  143 

ship,  the  risk  is  different,  it  varies  the  stay  ;  for  while  she  is  used  as  a  ware- 
house, no  cargo  is  brought  for  her.  Tlie  law  being  clear,  how  is  the  fact  ? 
The  captain  says  she  was  not  used  as  a  i'actory  ship ;  his  evidence  is  much 
impeached  ;  but  he  savs  he  was  young  in  the  trade;  he  never  saw  a  factory 
ship  but  once,  and  was  not  in  her  ;  he  might  have  a  salvo,  because  this  was 
not  thatclied ;  but  was  she  used  as  a  thatched  ship  is  used?  It  is  said  that 
letters  are  not  records ;  it  is  true  they  may  be  contradicted  ;  but  if  they  are 
from  the  parties,  and  are  not  contradicted,  they  are  as  strong  as  any  records. 
The  fact  is  clear,  the  risk  is  different  in  point  of  length,"  &c.  Rule  absolute 
for  a  new  trial.  [r() 

So  in  the  case  of  Parkinson  v.  Collier,  (b)  which  was  an  action  on  a  policy 
from  London  to  Port  Eidich,  on  the  coast  of  ^.^rtca,  at  six  guineas  ;jer  cent. 
on  the  sliip  till  moored  at  anchor  twenty-fours,  and  on  goods  till  discharged 
and  safely  landed.  'I'hc  ship  arrived  on  the  coast  on  the  6th  of  Tl/e/?/,  and  was 
captured  by  the  French  on  the  4th  of  June.  The  barter  in  the  trade  is  carried 
on,  on  board  the  vessel,  and  the  goods  afterwards  sent  on  shore,  in  boats,  and 
the  gums  brouglu  back.  In  this  case,  the  discharge  of  the  cargo  Iiad  not  begim, 
the  gums  not  having  been  brouglit  down  to  the  coast,  for  which  purpose  it  is 
necessary  to  have  a  previous  "agreement  with  the  king  of  the  p  j.  „.  -. 
country ;  bat  no  delay  had  been  used.     The  counsel  for  the  de-  L  J 

fendant  contended,  that  i)y  the  custom  of  this  trade,  the  risk  on  the  goods,  as 
well  as  on  the  ship,  expired  in  twenty-four  hours,  and  that  the  risk  on  the 
cargo,  while  on  the  coast,  was  protected  by  homeward  policy,  at  fifteen  gui- 
neas per  ccn'.,  Lord  Kenyan  refused  the  evidence,  both  of  die  homeward 
policy,  and  of  this  supposed  usage,  (which  he  had  on  a  former  occasion  ad- 
mitted atjainst  his  own  opinion,  and  on  which  a  new  trial  had  been  granted) 
to  qualify  the  clear  and  unequivocal  language  of  the  policy,  which  covered  the 
risk,  till  the  goods  were  landed.  That  if,  in  landing,  any  unnecessary  delay 
had  been  used,  that  might  amount  to  something  in  die  nature  of  a  deviation,  so 
as  to  discharge  the  insurer;  but  tliat  did  not  appear  to  be  the  case  in  the  present 
instance. 

But  though  an  actual  deviation  from  the  voyage  insured  is  thus  fatal  to  the 
contract  of  insurance:  yet  a  deviation  merely  intended,  but  never  carried  into 
effect,  is  considered  as  no  deviation,  and  the  insurer  continues  liable,  (rt)  This 
has  been  frequently  so  decided.  Thus  in  the  case  of  Tasker  v.  inimer,  (b) 
which  was  an  insurance  from  Carolina  to  Lisbon,  and  at  and  from  thence  to 
Bristol:  it  appeared,  that  d\e  captain  had  taken  in  salt,  which  he  was  to  deliver 
at  Falmouth  before  he  went  to  Bristol ;  but  the  ship  was  taken  in  the  direct 
road  to  both,  and  before  she  came  to  the  point  where  she  would  have  turned 
ofT  to  Falmouth.  It  was  held,  that  the  insurer  was  liable ;  for  it  is  but  an 
intention  to  deviate,  and  diat  was  held  not  suilicient  to  discharjre  the  under- 
writer. 

In  the  case  of  Carter  v.  The.  Roijal  Exchange  ./Issurnnce  Company,  (c) 
where  the  insurance  was  from  Honduras  to  London,  and  a  consignment  to 
Amsterdam ;  a  loss  happened  before  she  came  to  the  dividing  point  between 
the  two  voyages,  for  which  the  insurers  were  held  liable  to  pay, 

*From  the  proposition  just  established,  namely,  that  a  mere  p  ^0^9  "i 
intention  to  deviate  will  not  vacate  the  policy,   it  follows  as  an  ^  "'J 

(a)  See  Mount  v.  Larkins,  8  Bing.  108,  ante,  p.  177,  and  Freeman  v.  Taylor,  8  Bing. 
124. 

ib)  Sit.  in  B.  R.  after  Mich.  1797.  Parkins.  653.  Phillips  v.  Kinp;,  ante,  pp.  177, 
226. 

(a)  See  ante,  p.  234,  by  Lord  Eldon,  in  Tasker  v.  Cunningham,  1  Bligh,  87. 

\b)  2  Stra.  1249.  (c)  2  Stra.  1249. 

Vol.  VII,— L 


144  THE    SAID    SHIP,   GOODS,   ETC. 

immediate  consequence,  that  \vhai;n-cr  damage  is  sustained  l)erorc  actual  devia- 
tion, will  fall  upon  the  underwriters. 

Thus  it  was  held  by  Lord  Chief  Justice  Holt,  in  tlie  case  of  Green  v. 
Young,  (a)  who  said,  tliat  if  a  policy  of  insurance  he  made  to  l)egin  from  the 
departure  of  the  ship  from  Engla/nl,  until,  «Sic.,  and  after  the  departure  a  damage 
happens,  &.C.,  and  then  the  ship  deviates;  though  the  policy  is  discharged  from 
the  time  of  the  deviation,  yet  for  the  damages  sustained  before  the  deviation, 
the  insurers  sliall  make  satisfaction  to  the  insured. 

So  in  the  case  of  Hare  v.  Travis,  (J))  upon  an  insurance  '•'from  Liverpool 
to  London,''''  it  appeared  at  the  trial  that  the  captain  had  taken  in  goods  for 
Southampton  as  well  as  London.  Having  loaded  his  vessel  with  goods  partly 
for  one  place  and  partly  for  the  other.  Lord  Tcnterden  held,  that  it  ought  to  be 
inferred  that  he  sailed  on  a  voyage  to  both  places,  and  that  so  long  as  the  vessel 
continued  in  that  course  which  Avas  common  to  a  voyage  either  to  South- 
ampton or  London,  she  was  sailing  on  the  voyage  insured;  but  as  the  policy 
did  not  contain  a  liberty  to  put  into  Soidhanipton,  the  putting  into  that  port 
was  a  deviation,  and  the  underwriters  were  not  responsible  for  anj'  loss  which 
accrued  subsequendy.  But  as  it  appeared,  however,  that  the  vessel  had  met 
with  very  bad  weather  in  the  early  part  of  the  voyage,  he  left  it  to  the  jury  to 
say,  whether  before  the  vessel  came  to  the  dividing  point  the  assured  had  sus- 
tained a  loss  by  the  perils  of  the  sea.  The  jury  found  that  they  had,  and  the 
Court  afterwards  upon  motion  supported  the  verdict. 


[    *263    ]  -SECTION  VIH. 

'•THK    SAID    SHIP,   ETC.,   GOODS,   ETC.,   ARK    VALUED    AT 


The  head  of  this  section  is  important,  although  what  is  necessary  to  be  said 
upon  it  will,  nevertheless,  lie  in  a  small  compass.  The  assurers  here  say, 
"The  said  ship,  &c.,  goods  and  merchandises,  &c..  for  so  much  as  it  concerns 
the  assured,  by  agreement  between  the  assured  and  assurers  in  this  policy,  are 
and  shall  be  valued  at ." 

When  the  blank  space  is  filled  up  I)y  the  assured,  the  policy  then  becomes 
that  which  is  designated  as  a  ^''valued  "pohcy."  If  the  blank  be  not  filled  up 
by  the  assured,  the  policy  is  then  said  to  be  oj>en.  The  only  difference 
between  them  consists  in  this,  that  in  tlie  former,  the  goods  or  property  insured 
arc  valued  at  a  certain  price,  viz :  the  prime  cost  of  the  property  insured,  or 
the  value  mentioned  in  the  policy ;  in  the  latter,  the  value  is  not  stated,  but 
requires  proof  when  necessary,  and  consists  of  the  invoice,  price,  shipping 
charges,  aiul  premium  of  insurance,  (o)  Lord  Mansfield,  in  the  case  of 
Lewis  and  another  v.  Hucker,  {h)  puts  the  construction  of  the  meaning  of  a 


(r/)   2  Lord  Raymoi-d,  840;  2  Salk.  444,  8.  G.post. 

(h)  7  13.  &  C.  14.  And  .see  the  case  of  .Middlcwood  v.  Blakes,  7  T.  R.  162,  and  al.so 
Hesclton  V.  Allnutt,  1  M.  &  S.  4(5,  wlion;  the  .spveral  cases  immediately  preceding  on  the 
diKtinrtion  l)ttwcen  deviations  intended,  hut  not  carried  into  eftect,  and  non-inception  of  the 
v<>ynt;e  insured,  are  luueh  con.sidcred. 

(a)  15y  the  UHage  at  Lloyd's,  where  liherty  is  given  by  the  policy  to  '< declare  and  value" 
after  the  policy  is  eflbctcd,  and  no  declaration  or  valuation  i.s  indorsed  on  the  policy,  it  is 
considered  as  an  open  policy.  2  I}.  «Sc  Ad.  651.  Harman  and  others  v.  Kingston,  3 
Camp.   liiO. 

(6)  2  Burr.  p.  1170. 


THE    SAID    SHIP,   GOODS,   ETC.  145 

valued  policy  upon  very  clear  grounds.  In  answer  to  an  objection  to  the  rule 
adopted  by  the  defendant,  and  by  the  jury  in  that  case  of  the  rule  of  appor- 
tionment of  a  partial  loss,  viz  :  "that  of  taking  the  proportion  of  the  difierence 
between  sound  and  damaged  at  the  port  of  delivery,  and  paying  that  proportion 
of  the  value  of  the  goods  specified  in  the  policy.  The  defendant  says  the 
proportion  of  the  difierence  is  equally  the  rule  whether  the  goods  come  to  a 
rising  or  falling  market.  For  *instance,  suppose  the  value  in  the  ^  $9^4  -1 
policy  30/.  :  the  goods  are  damaged,  but  sell  for  40/.  :  had  they  L  J 

been  sound  they  would  have  sold  for  50/. :  the  difTerence  is  one-fifth :  he  pays 
that  proportion  on  the  prime  cost  or  value  in  the  policy  {i.  e.  6/. ;)  if  they  come 
to  a  losing  market  for  10/. ,  being  damaged,  but  would  have  sold  for  20/.,  if 
sound,  the  difference  is  one-half,  and  the  defendant  must  pay  one-half  of  the 
prime  cost  or  value  in  the  policy  [i.  e.  15/.).  To  this  rule  two  objections  have 
been  made  :  the  first  objection  is,  that  it  is  going  by  a  different  measure  in  the 
case  of  a  partial  from  that  which  governs  in  the  case  of  a  total  loss,  for  upon  a 
total  loss  the  prime  cost  or  value  in  the  policy  must  be  paid. 

Answer. — "The  distinction  is  founded  in  the  nature  of  the  thing.  Insurance 
is  a  contract  of  indemnity  against  the  perils  of  the  voyage  ;  the  assurer  engages, 
so  far  as  the  amount  of  the  prime  cost  or  value  in  the  policy,  "  that  the  thino- 
shall  come  safe,"  he  has  nothing  to  do  with  the  market ;  he  has  no  concern  in 
any  profit  or  loss  which  may  arise  to  tlie  merchant  from  the  goods  :  if  they  be 
totally  lost,  he  must  pay  the  prime  cost,  that  is  the  value  of  the  thing  he  insured 
at  the  outset :  he  has  no  concern  in  any  subsequent  value.  So,  likewise,  if 
any  part  of  the  cargo,  capable  of  a  several  and  distinct  valuation  at  the  outset, 
be  totally  lost,  as  if  there  be  100  hogsheads  of  sugar,  and  10  happen  to  be  lost, 
the  assurer  must  pay  the  prime  cost  of  those  10  hogsheads,  without  any  regard 
to  the  price  at  which  the  remaining  90  are  sold.  But  where  an  entire  indi- 
vidual, as  one  hogshead,  happens  to  be  spoiled,  no  measure  can  be  taken  from 
the  prime  cost  to  ascertain  the  quantity  of  such  damage,  but  if  he  can  fix 
whether  it  be  a  third,  fourth  or  fifth  worse,  the  damage  is  to  a  mathematical 
certainty.  How  is  it  to  be  found  out?  Not  by  any  price  at  the  outset  port, 
but  it  must  be  at  the  port  of  delivery  where  the  voyage  is  completed,  and  the 
whole  damage  known.  Whether  the  price  there  be  high  or  low,  in  either  case 
it  equally  shew  whether  the  damaged  goods  are  a  third,  fourth,  or  fifth  worse 
than  if  they  had  come  sound;  consequendy,  whether  the  injury  sustained  be  a 
third,  *fourth,  or  fifth  of  the  value  of  the  thing,  and  as  the  assurer  ^  ^ 
pays  the  whole  prime  cost  if  the  thing  be  wholly  lost,  so  if  it  be  L  -J 

only  a  third,  or  fourth,  or  fifth  worse,  he  pays  a  third,  fourth  or  fifth  of  the 
value  of  the  goods  so  damaged.  The  next  objection  with  M'hich  this  case  has 
been  much  entangled,  is  taken  from  this  being  a  "valued"  policy.  I  am  a  little 
at  a  loss  to  apply  the  arguments  drawn  from  thence.  It  is  said,  "  that  a  ro/?<e</ 
is  a  tvager  policy,"  (like  interest  or  no  interest,)  if  so,  there  can  be  no  average 
loss,  and  the  assured  can  only  recover  as  for  a  total  loss,  abandoning  what  is 
saved,  because  the  value  specified  is  fictitious." 

Ansiver. — "A  valued  policy  is  not  to  be  considered  as  a  wager  policy,  or 
like  'interest  or  no  interest,'  if' it  was  it  would  be  void  by  the  act  of  19  Geo. 
2,  c.  37.  The  only  effect  of  the  valuation  is  fixing  the  amount  of  the  prime 
cost,  just  as  if  the  parties  admitted  it  at  the  trial,  but  in  every  argument,  and 
for  every  other  purpose,  it  must  be  taken  the  value  was  fixed  in  such  a  manner 
as  that  the  assured  meant  only  to  have  an  indemnity.  If  it  be  undervalued, 
the  merchant  himself  stands  insurer  of  the  surplus.  If  it  be  much  overvalued, 
it  must  be  done  with  a  bad  view,  either  to  gain  contrary  to  the  act  before  men- 
tioned, or  with  some  view  to  a  fraudulent  loss  :  therefore  the  assured  can  never 
be  allowed  in  a  Court  of  Justice  to  plead  that  he  has  greatly  overvalued,  or  that 
his  interest  was  a  trifle  only.     It  is  settled,   'that  upon  valued  policies  the 


146  THE    SAID    SHIP,   GOODS,  ETC. 

assured  need  only  prove  some  interest  to  take  it  out  of  the  stat.  19  Geo.  2, 
because  the  adverse  party  has  admitted  the  vahie,  and  if  more  was  required, 
the  agreed  vahiation  would  signify  nothing ;  but  if  it  should  come  out  in  proof 
that  a  man  had  insured  2000/.,  and  had  interest  on  board  to  the  value  of  a  cable 
only,  there  never  has  been  and  I  believe  there  never  will  be,  a  determination 
that  by  such  an  evasion  the  act  may  be  defeated.  There  are  many  conveni- 
ences from  allowing  valued  policies,  but  where  they  are  used  merely  as  a  cover 
to  a  wager,  they  would  be  considered  as  an  evasion.  The  effect  of  the  valua- 
tion is  only  fixing  conclusively  the  prime  cost.  If  it  be  an  open  policy,  the 
r  *9fifi  1  prime  cost  must  be  proved  j  *in  a  valued  policy  it  is  agreed.  To 
L  J  argue  'that  there  can  be  no  adjustment  of  an  average  loss  upon  a 

valued  policy,'  is  direcdy  contrary  to  the  very  terms  of  the  policy  itself.  It  is 
expressly  subject  to  average,  if  the  loss  upon  sugars  exceed  5  per  cent.;  if  it 
was  not,  the  consequence  would  not  be  that  every  partial  loss  must  therefore 
become  total,  but  the  event,  to  entide  the  assured  to  recover,  would  not  happen 
unless  there  was  a  total  loss." 

In  the  late  case  of  Young  v.  Sir  J.  H.  Irving.  Bart.^  and  others,  (a)  which 
was  tried  before  Tindal,  C.  J.,  at  the  Sittings  at  Guildhall  nfler  Hil.  Term, 
1836.  At  the  trial,  two  objections  to  the  charge  of  the  Chief  Justice  were 
taken.  The  first  (which  is  the  only  one  connected  with  our  present  inquiry) 
was  this,  "that  the  Chief  Justice  ought  to  have  told  the  jury,  that  in  deter- 
mining whether  the  loss  was  partial  or  total,  they  ought  to  take  into  their  con- 
sideration the  estimated  value  of  tlie  ship  in  the  policy."  The  bill  of  excep- 
tion came  on  in  the  Exchequer  Chamber,  when  Lord  ^%inger  said,  "lam 
not  aware  of  any  case  or  principle  in  the  law  of  insurance  which  makes  the 
estimated  value  in  the  policy  a  circumstance  upon  which  the  question  of  total 
or  partial  loss  ought  to  turn.  The  agreed  value  in  the  policy  of  the  subject 
insured,  is  to  save  the  expense  and  doubt  that  may  attend  the  investigation  of 
value,  as  affecting  the  quantum  of  compensation  only.  It  may  operate,  accord- 
ing to  events,  to  the  detriment  or  advantage  of  either  party,  and  where  no  fraud 
exists  both  are  bound  by  it.  We  are  of  opinion  that  there  is  no  ground  for  the 
first  exception." 

In  the  case  of  Thelluson  v.  Fletcher,  {b)  which  has  already  been  referred  to 
in  this  Treatise,  as  a  case  shewing  that  the  19  Geo.  2,  c.  37,  does  not  apply 
to  foreign  ships  :  I  now  again  refer  to  it,  on  the  subject  now  under  our  consid- 
eration. This  was  a  rule  to  shew  the  inquisition  on  a  writ  of  inquiry  in  an 
action  should  not  be  set  aside.  The  material  part  of  the  policy  for  oiir  now 
r  *267  "1  P^''P°^^'  ^^'^^  i"  these  words. — "  On  *all  goods  loaden  or  to  be 
*-  -^  loaden  aboard  the  ships,  Le  Soigneux,  La  Pucelle  and  Le  Vain- 

quer,  all  or  any  of  them :  the  said  goods  and  merchandises,  by  agreement  are, 
and  shall  lie  valued  at  (c)  on  twenty-five  casks  of  clayed  sugar,  and 

twelve  hogsheads  of  Muscovados :  the  policy  to  be  deemed  sufficient  proof  of 
interest  in  case  of  loss."  The  defendant  had  underwritten  300/.,  and  having 
sufl^ered  judgment  by  default,  the  jury,  on  the  writ  of  inquiry  assessed  the 
dam:iges  at  that  sum,  without  any  proof  of  the  amount  or  value,  or  any  evi- 
dence whatever,  except  of  the  defendant's  handwriting  to  the  policy.  After 
the  argument  at  the  Bar;  the  Court  said,  that  the  only  affidavits  that  could 
have  been  here,  was  from  the  circumstance  of  there  being  three  ships,  but  the 
second  count  was  so  framed  (the  count  averring  that  the  goods  were  shipped 
on  board  the  three  ships,  or  some,  or  one  of  them,  to  the  amount  insured,  and 
that  two  of  them  had  been  captured,  and  the  other  lost)  as  to  make  the  case  the 


(«)  H  Scott's  N.  R.  752.  (/,)   1  Doug.  315,  ante,  p.  32. 

(c)  This  was  left  blank  as  here  printed. 


TOUCHING  THE  ADVENTURES  AND  PERILS,  ETC.  147 

same  as  if  there  had  been  but  one.  By  suffering  judgment,  the  defendant  had 
confessed  the  plaintiff's  tide  to  recover,  and  the  amount  was  fixed  by  the  stipu- 
lation in  the  policy.      Rule  discharged. 


SECTION  IX. 

TOUCHING    THE    ADVENTURES    AND    PERILS,   ETC. 

The  assurers,  in  this  section,  commence  by  referring  to  the  risks  and  adven- 
tures which  they  (the  assurers)  are  contented  to  bear,  and  take  upon  themselves 
in  the  voyage  insured,  and  afterwards  they  proceed  to  enumerate  them.  It  is 
our  purpose  in  the  present  section,  to  confine  ourselves  to  some  general  obser- 
vations on  the  adventures  and  perils,  which  the  assurers  take  upon  themselves, 
and  to  refer  to  some  general  rules  and  principles  of  the  law  of  marine  insurance 
upon  this  particular  head  of  the  subject;  and  in  *regard  to  which,  p  ^^^^  -, 
I  may  observe,  that  it  is  most  important  to  have  clear  ideas  upon  L  J 

these' rules  and  principles,  upon  which  the  Courts  in  modern  times  have  con- 
strued this  part  of  the  policy.  And  I  may  preface  the  following  matter,  by  a 
few  observations,  on  the  grounds  upon  which  the  Courts  have  decided  many 
cases  relating  to  the  perils  insured  against,  and  on  the  advantages  which,  in  this 
respect,  the  assured  possess  over  the  assurers. 

The  contract  of  which  we  are  treating,  must  undoubtedly  be  looked  upon, 
in  respect  of  the  nature  of  the  element  upon  which  it  is  to  be  performed,  as 
subject  to  much  more  uncertainty,  and  to  many  more  vicissitudes  than  any  other 
contract  known  to  the  law.  The  difficulties  of  proving  the  real  causes  of  dis- 
asters at  sea,  and  to  the  well  known  contradictory  evidence  Avhich  is  given  at 
the  trial  on  seafaring  matters,  make  it  exceedingly  difficult  to  arrive  at  the  fact 
of  "whether  the  loss  or  misfortune,  in  many  instances,  arose  from  one  cause 
or  from  another."  The  Courts  of  Law,  in  this  country  especially,  bearing  this 
in  mind,  and  sensible  of  the  strictness  of  the  rule  binding  the  assured,  of  the 
implied  warranty  of  the  seaworthiness  of  the  bottoms,  (upon  which  the  insu- 
rance is  made)  and  also  considering  the  payment  of  the  premiums  paid  by  the 
assured  to  the  underwriter,  by  agreement,  at  the  time,  the  underwriter  always 
acknowledging  the  receipt  of  it,  have  laid  down  many  rules  in  such  cases,  to 
prevent  the  underwriters  shaking  off  their  responsibility,  on  the  plea  of  some 
uncertainty  in  the  proof  of  the  manner  in  which  the  loss  happened.  I  shall 
briefly  advert  to  what,  I  believe,  to  be  the  principal  rules,  principles,  and  max- 
ims of  the  law,  which  the  Judges  have  applied  to  this  contract  more  particu- 
larly than  to  any  other :  this,  in  the  following  sections,  will  be  found  to  be 
satisfactorily  demonstrated. 

The  first  rule  which  I  shall  mention  is  this,  viz  : — "  That  the  immediate  and 
not  the  remote  cause  of  the  loss,  is  that  which  is  looked  to  by  the  Court  in 
considering  the  question,  whether  the  accident  come  within  the  perils  insured 
against  by  the  underwriters ;  and  if  this  be  covered  by  the  terms  ^  *269  1 
*expressed  in  the  policy,  they  have  held  the  underwriters  liable,  L 
notwithstanding  the  event  may  be  attributable,  in  the  first  instance,  to  a  remote 
cause  of  a  different  description."  "It  were  infinite,"  says  Lord  Bacon,  (a) 
"for  the  law  to  judge  the  causes  of  causes,  and  of  their  impulsions  on  one 


(a)  Maxims  of  the  Law,  p.  35,  of  Law  Tracts,  1737. 


148  PERILS   OF    THE    SEA,   FIRE,   ETC. 

another :  and,  therefore,  it  contenteth  itself  with  the  immediate  cause,  and 
judgeth  of  acts  by  that,  without  looking  to  any  farther  degree."  Such  must 
always  be  understood  to  be  the  mutual  intention  of  the  parties  to  the  contract 
of  marine  insurances.  Thus,  for  instance,  (Z»)  "where  'fire'  is  expressly 
mentioned  in  the  policy,  as  one  of  the  perils  against  which  the  underwriters 
undertake  to  indemnify  the  assured,  it  is  of  no  consequence  whether  this  is 
occasioned  by  a  common  accident,  or  by  lightning,  or  by  an  act  done  in  duty 
to  the  state.  Nor  can  it  make  any  difference,  whether  the  ship  is  thus  destroyed 
by  third  persons,  officers  of  the  king,  or  by  the  captain  and  crew,  acting  with 
loyalty  and  good  faith.  Fire  is  still  the  '  causa  causans '  and  the  loss  is  covered 
by  the  policy."  And  this  is  agreeable  to  the  law  in  France  upon  the  sub- 
ject; (c)  and  see  the  case  of  Jones  v.  SchmoU,  {d)  decided  by  Lord  Mansfield^ 
on  the  same  point. 

It  is  also  a  maxim  of  the  law  of  marine  insurance  "that  the  assured  having 
provided  a  sufficient  crew  and  captain  of  competent  skill  at  the  commencement 
of  the  voyage,  makes  no  warranty  that  they  shall  do  their  duty  during  the  con- 
tinuance of  it,  nor  are  the  underwriters  discharged  from  their  liability,  in  case 
of  a  loss  occasioned  immediately  by  one  of  the  perils  insured  against,'  although 
remotely  owing  to  the  negligence  of  the  master  and  crew."  This  principle  of 
the  law  of  marine  insurance,  will  be  found  to  be  supported  by  various  authori- 
ties. 

r    *270     1      ^^  "^^^  proceed  to  the  consideration  of  the  several  perils  *enu- 
-J  merated  in  the  policy,  against  the  consequences  arising  out  of  which, 
the  assurers  have  undertaken  to  keep  the  assured  harmless. 


SECTION  X. 

PERILS    OF    THE    SEA,    FIRE,   ETC.  (o) 

The  assurers  say  that  "the  perils  which  they  are  contented  to  take  upon 
thems(-lves  are  of  '  the  sea, '  and  of  '  fire. '  "     Of  these,  therefore,  in  their  order. 

In  the  first  place,  it  may  be  said  generally  that  every  accident  which  happens 
to  a  ship  durmg  her  voyage  by  the  mere  act  of  God  is  to  be  considered  as  a 
"peril  of  the  sea;"  for  every  loss  whicli  arises  "from  tempests,  or  by  rocks, 
winds,  or  waves,"  (6)  strictly  and  naturally  come  under  the  idea  of  a  loss 
occasioned  by  "the  perils  of  the  sea." 

But  where,  as  in  the  case  of  Green  v.  Ehmlie,  (c)  the  ship  when  on  her 
voyage  was  driven  by  a  hard  gale  of  wind  on  the  coast  of  France,  and  was 
there  captured  by  the  enemy,  she  did  not  receive  any  damage  from  the  wind, 
(the  insurance  was  against  capture  only,)  it  was  contended  for  the  defendant 
that  tins  was  a  loss  by  the  "perils  of  the  sea,"  and  not  by  capture,  and  that 
the  defendant  was  not  liable  upon  that  policy.  But  Lord  Kenyan  said,  that 
the  case  was  too  clear  to  admit  of  argument :  this  was  clearly  a  loss  by  cap- 


(6)  Gordon  v.  Rimniington,  1  Camp.  132. 

(c)   Pothier  traitc-  du  Cent.  d'Assur.  s.  53.     Valin,  liv.  3,  tit.  6.     Des  Asurrances,  art. 
•40;    I  bmeng.  p.  434. 

{(1)   1  T.  R.  130,  note  (a). 

of-war  ^  ^^^'^  "^^^^""^  *''^  "'^'''"^  ^"  ^'^'^  P^'"'  ^^  P""i"S  ^he  peril  of  "fire "  before  that  of  men- 
(6)  Jefferyesv.  Legendra,  1  Show.  323.         (c)  Peake,  212. 


PERILS    OF    THE    SEA,   FIRE,   ETC.  149 

tiire  ;  for  had  the  ship  been  driven  on  any  other  coast  than  that  of  an  enemy,  she 
would  have  been  in  perfect  safety.      Verdict  for  the  plaintiff. 

In  the  case  of  Hodgson  v.  Malcolm^  {d)  where  it  became  necessary,  in 
moving  a  ship  from  one  part  of  a  harbour  to  another,  to  send  two  of  the  crew 
on  shore  to  make  fast  a  new*  line,  and  to  cast  oft'  a  rope  by  which  ^  ^oil  1 
the  ship  was  made  fast,   and  those  two  men  being  immediately  L  -J 

impressed,  and  carried  away,  and  not  being  allowed  by  the  pressgang  to  cast 
off  the  rope  in  question,  the  ship,  in  consequence  thereof,  went  ashore,  and 
was  lost.  Three  Judges  of  the  Court  of  Common  Pleas,  viz  :  Mr.  J.  Heath, 
Mr.  J.  Rookc^  and  Mr.  J.  Chambre,  held  this  to  be  a  loss  (within  the  meaning 
of- the  policy)  by  "perils  of  the  sea,"  contrary  to  the  opinion  of  Chief  Justice 
Sir  J.  Mansfield. 

In  the  case  of  Livie  v.  Janson.,  {a)  (which  will  be  mentioned  afterwards, 
with  reference  to  another  and  more  important  point  in  the  case,)  the  action  was 
on  a  policy  of  insurance  on  an  American  ship,  ''at  and  from  Neiv  York  to 
London.,^''  warranted  free  from  ^'•American  condemnation."  The  facts  were 
shortly  the  following: — The  ship,  in  order  to  elude  her  national  embargo, 
slipped  away  in  the  night,  and  was  driven  by  the  ice,  wind,  and  tide,  on  shore, 
and  was  ultimately  condemned  by  the  American  government,  for  breach  of  the 
embargo.      The  underwriters  were  discharged. 

But  where,  in  the  case  of  Hahn  v.  Corbett,  (6)  an  insurance  was  made  on 
goods  on  board  a  ship,  "warranted  free  from  capture  and  seizure,"  and  the 
ship  was  stranded  on  a  shoal,  within  a  few  miles  of  the  port  of  her  destination, 
and  was  lost ;  but  whilst  she  lay  on  the  sand  she  was  seized  by  the  commander 
of  the  place,  and  her  goods  were  confiscated  by  him.  This  was  held  to  be  a 
loss  by  perils  of  the  sea. 

And  in  the  case  of  Bondrett  v.  Henfigg,  (c)  which  was  an  action  on  an 
insurance  on  goods,  and  where  the  ship  was  actually  wrecked,  part  of  the  goods 
lost  and  part  got  on  shore,  but  whilst  on  shore  were  destroyed  and  plundered 
by  the  inhabitants,  so  that  no  part  of  them  again  came  into  the  possession  of 
the  assured.  Lord  Chief  Justice  Gibbs  was  of  opinion  that  this  was  a  loss 
by  perds  of  the  sea.  . 

And  in  a  very  recent  case  of  Redman  v.  Wilson,  in  which  judgment  was 
given  by  Parke,  B.  {d)  "and  which  was  an  action  *on  a  policy  of  p  ,.272  "I 
insurance  made  on  the  ship  ^'•JVellington,''^  trading  "to  and  from  L  J 

Sierra  Leone..''''  at  the  trial  the  jury  returned  a  verdict  for  the  plaintiff.  The 
defendant  moved  for,  and  obtained  a  rule,  calling  upon  the  plaintifi'  to  show 
cause  why  the  verdict  should  not  be  set  aside  and  a  new  trial  had,  on  the 
ground  that  the  loss  had  been  occasioned  by  the  negligence  of  the  party  in 
charge  of  the  vessel.  During  the  trial  it  was  proved,  that  the  ship  had  sprung 
a  leak,  and  that  with  the  hope,  at  all  events,  of  saving  part  of  the  cargo,  the 
captain  had  run  her  ashore,  where,  ultimately,  she  had  gone  to  pieces.  It  was 
contended  for  the  defendant  that  this  was  not  one  of  the  perils  of  the  sea.  The 
Court  were  of  opinion  that  it  was  one  of  "die  perds  of  the  sea,"  and,  more- 
over, that  there  had  been  no  proof  whatever  of  any  neglect.  The  rule  must, 
therefore,  be  discharged." 

But  although,  as  was  said  in  the  previous  section,  the  Courts  are  liberal  in 
construing  this  part  of  the  contract,  yet  they  will,  at  the  same  time,  be  cautious 
not  to  extend  the  principle  so  as  to  make  the  acts  of  the  parties  operate  beyond 
their  intention,  and  wUl  be  guided  by  the  terms  used  in  the  policy  to  see  whether 


(rf)  2  N.  R.  336.  (a)   12  East,  648. 

(6)  2  Bing.  205.  (c)   1  Holt,  149. 

{d)  29th  June,  1845,  MS.  pmes  me. 


150  PERILS    OF    THE    SEA,   FIRE,   ETC. 

a  certain  loss,  which  has  happened,  is  covered  by  the  terms  used  in  the  poUcy 
to  fix  the  risks  against  which  the  underwriter  has  siibscrii)ed. 

And  therefore  in  the  case  of  Gregson  v.  Gilbert,  {(l)  which  was  an  action 
on  a  poUcy  of  insurance  on  the  value  of  certain  slaves  insured  by  the  policy. 
The  declaration  stated  "that  by  perils  of  the  sea,  contrary  winds,  currents,  and 
other  misfortunes,  the  voyage  was  so  much  retarded  that  a  suiricient  quantity 
of  water  did  not  remain  for  the  support  of  the  slaves  and  other  people  on  board  ; 
that  certain  of  the  slaves  mentioned  in  the  declaration  perished  for  want  of  water. 
The  facts,  as  they  appeared  by  the  evidence,  were,  that  the  sliip,  beinsr  bound 
from  Guinea  to  Jamaica,  had  missed  the  island,  and  the  crew  were  reduced 
to  great  distress  for  want  of  water ;  that  the  captain  consulted  with  the  cre^v, 
*o'7Q  n  ^^^  ^^  ^^^^  *unanimously  agreed  upon  that  some  of  the  slaves 
L  ■^'^  J  should  be  thrown  overboard,  in  order  to  preserve  the  rest :  that  at 
the  time  of  this  resolution  there  remained  but  one  day's  full  allowance  of  water, 
at  two  quarts  per  man.  The  jury,  upon  this  evidence,  found  a  verdict  for  the 
plaintiff',  with  damages  30/.  a  head  for  every  slave  thrown  overboard.  A  mo- 
tion was  afterwards  made  for  a  new  trial,  upon  the  ground  that  this  was  not  a 
loss  by  "perils  of  the  sea." 

Lord  Mansfield. — "This  is  a  very  uncommon  case,  and  deserves  a  further 
consideration.  There  is  great  weight  in  the  objection,  that  the  loss  is  stated 
by  the  declaration  to  have  arisen  from  the  "perils  of  the  sea,"  and  that  the 
currents,  (fee,  made  the  ship  foul  and  leaky.  Now,  does  it  appear  by  evidence 
that  the  ship  was  foul  and  leaky  ?  On  the  contrary,  the  loss  happened  by  mis- 
taking Jamaica  for  another  place.  Besides,  a  fact  has  been  mentioned  by  the 
counsel,  of  throwing  some  slaves  overboard,  after  the  rain  fell — a  fact  which  is 
not  agreed  on  by  both  sides,  though  a  very  material  one." 

Mr.  Justice  Buller. — "The  declaration  does  not  in  any  part  of  it,  state  the 
loss  which  has  been  the  occasion  of  this  demand  ;  and  it  would  be  very  mis- 
chievous if  we  were  to  overturn  this  objection.  Suppose,  for  a  moment,  that 
the  underwriters,  in  some  cases,  are  liable  for  the  mistake  of  the  captain,  yet, 
if  they  are  not  liable  in  others,  the  nature  of  the  loss  must  be  stated  in  the 
declaration,  that  the  defendant  may  have  an  opportunity  of  moving  in  arrest  of 
judgment,  if  it  be  not  suihciently  alleged.  But  it  would  be  impossible  for  the 
defendant  in  this  case  to  move  in  arrest  of  judgment :  for  the  facts  of  the  case, 
as  proved,  are  different  from  those  stated  in  the  declaration.  The  point  of  law 
in  arrest  of  judgment  can  only  be  argued  from  the  facts  stated  on  record  ',  and 
the  declaration  in  this  case  states  the  loss  of  the  plaintiff  to  have  happened 
by  perils  of  the  sea."  The  rule  for  a  new  trial  was  made  absolute,  on  payment 
of  costs. 

A  loss  occasioned  by  another  vessel  running  down  the  ship  insured,  is  a  loss 

r    *274.     1  ^'^  P^""^^  ^^  ^^  ^^^ '  although  there  be  *negligence  on  the  part  of 
L  J  the  ship  insured,  as  well  as  on  that  of  the  other  vessel,  Smith  v. 

Scott,  (a) 

In  the  case  of  the  TVoodrop  Sims,  Sir  W.  Scott,  (b)  lays  down  the  follow- 
ing rule  as  to  the  mode  in  which  the  damage  is  to  be  borne  by  the  two  vessels 
in  dillerent  cases.  He  says,  "There  are  four  possibilities  under  which  an 
accident  of  this  sort  may  occur.  In  the  first  place,  it  may  happen  without 
l)lamo  being  imputable  to  either  party ;  as  where  a  loss  is  occasioned  by  a  storm, 
or  by  any  other  vis  major:  in  that,  the  misfortune  must  be  borne  by  the  party 
on  whom  it  happens  to  light ;  the  other  not  being  responsible  to  him  in  any 
degree.     Secondly,  a  misfortune  of  this  kind  may  arise  when  both  parties  are 


(rf)  B.  R.  23  Geo.  3.     Park  Ins.  138.  (a)  4  Taunt.  126. 

(/>)  2  Dod.  Ad.  Rep.  85. 


PERILS    OF    THE    SEA,   FIRE,   ETC.  151 

to  blame ;  where  there  has  been  a  want  of  due  diligence  and  skill  on  both 
sides :  in  such  a  case,  the  rule  of  law  is,  that  the  loss  must  be  apportioned 
between  them  as  having  been  occasioned  by  the  fault  of  both  of  them.  Thirdly, 
it  may  happen  by  the  misconduct  of  the  suffering  party  alone  ;  and  then  the  rule 
is  that  the  sufferer  must  bear  his  own  burthen.  Lastly,  it  may  have  been  the 
fault  of  the  ship  which  ran  the  other  down;  and  in  this  case  the  injured  party 
would  be  entitled  to  an  entire  compensation  from  the  other." 

In  Emcrigon  there  is  the  follov/ing  passage:  (c) — "Si  I'abordage  n'est  pas 
arrive  par  cas  fortuit,  et  qu'il  soit  impossible  de  savoir  par  la  fiuite  dequi,  c'est 
alors  le  cas  de  partager  le  differend,  et  de  faire  supporter  la  moitie  du  dommage 
a  chacun  des  deux  navires.  Tel  est  le  sens  de  I'art  10  titre  des  avaries.  En 
cas  d'abordage  de  vaisseaux,  il  est  dil,  le  dommage  sera  paye  egalement  par 
les  navires  qui  I'auront  fait  et  suffert,  soit  en  route,  rade.  ou  en  port."  And 
he  cites,  for  this  position,  Les  Jugemens  d'' Oleron,  art.  14;  L^  Ordonnance  de 
JVisbuy,  art.  26,  27,  50  and  70  ;  and  Le  Droit  Anseatiqve^  tit.  10.  And  the 
editor,  M.  Boulay-Paty,  [d]  says,  that  the  law  is,  that  if  there  be  doubt,  in  the 
*case  of  collision,  as  to  the  cause,  each  vessel  is  to  bear  its  part —  p  *27fi  "1 
and  he  adds,  "La  loi  considerc  done  comme  les  vraies  causes  du  •-  J 

dommage  la  fortune  de  mer,  la  force  majeure  qui  a  pousse  les  navires  I'un  sur 
I'autre ;  et  dans  ce  cas,  la  portion  qui  incombe  au  navire  assure  doit  etre  a  la 
charge  des  assureurs,  qui,  par  la  nature  du  contrat  d'assurance,  sont  tenus  de 
tous  les  accidens  arrives  sur  mer,  quelques  insolites,  inconnus  ou  extraordinaires 
qu'ils  soint."  (a) 

And  Pothier,  [b]  says,  "L'assureur  se  charge  par  le  contrat  d'assurance,  des 
risques  de  tous  les  cas  fortuils  qui  peuvent  survenir  par  force  majeure  durant 
le  voyage,  et  causer  a  I'assure  une  porte  dans  les  choses  assurees  ou  par  rapport 
aux  dites  choses." 

But  we  have  already  seen  that  the  Courts  of  law  in  this  country,  look  to  the 
direct  and  immediate  consequence  of  a  peril  insured  against,  and  not  to  a 
remote  one :  (c)  and  a  mere  remote  consequential  damage  arising  from  such  an 
accident  would  not  fall  upon  tlie  underwriters.  Thus  in  the  case  of  De  Vaux 
v.  Scdvador^  id)  where  a  collision  between  two  vessels  had  taken  place,  and 
there  was  fault  on  each  side,  the  Court  of  King's  Bench  held,  that  although  the 
underwriters  were  as  a  matter  of  course,  liable  for  the  direct  injury  sustained 
by  the  insured  vessel,  yet  that  they  were  not  liable  for  the  amount  of  a  sum  of 
nioney  which  a  foreign  Court  of  Admiralty  awarded,  to  be  repaid  by  the  insured 
vessel  to  the  other,  in  consequence  of  her  having  done  that  vessel  more  damage 
than  she  herself  had  received. 

The  Court  of  King's  Bench  have  been  of  opinion,  that  where  a  vessel  was 
sunk  at  sea,  by  another  vessel  firing  upon  her,  mistaking  her  for  an  enemy,  if 
not  a  peril  of  the  sea,  as  some  of  the  Judges  thought,  was  a  loss  within  the 
policy,  as  being  a  peril,  loss  and  misfortune,  under  the  general  p  *276  1 
ivords  *of  the  policy,  sustained  in  the  course  of  her  navigation  on  L  J 

the  sea.  (a) 

In  the  case  of  Tatham  v.  Hodgson,  (b)  which  was  an  insurance  upon  slaves 
against  perils  of  the  seas,  their  death  by  failure  of  sufficient  and  suitable  pro- 
vision, though  that  failure  was  occasioned  by  extraordinary  delay  in  the  voyage 
from  bad  and  stormy  weather,  was  holden  not  to  be  a  loss  within  the  policy  by 


(c)  Vol.  1,  p.  413  (ed.  1827.)  {d)  Pasje  417. 

(a)   And  sec  Boulay-Paty,  Cours  de  Droit  Coniincrcial  Maritime,  tit.  x.  s.  16,  torn.  4, 
,  16.  ' 

(6)  Traite  du  Contrat  d' Assurance,  ch.  1,  sect,  ii,  art.  2,  §  2,  49. 
(c)  See  ante,  p.  93.  {d)  4  A.  &  E.  420. 

(a)  Cullen  v.  Butler,  5  M.  &  S.  461.  (6)  6  T.  R.  656. 


152  PERILS    OF    THE    SEA,   FIRE,   ETC. 

perils  of  the  sea,  but  a  loss  by  natural  death,  which  cannot  now  bo  insured 
against  since  the  statutes  for  regulating  the  manner  of  carrying  slaves  in  British 
vessels  from  the  coast  of  .flfrica,  by  which  it  is  provided,  that  no  loss  or  dam- 
age shall  be  recoverable  on  a  policy  on  account  of  the  mortality  of  slaves  by 
natural  death,  or  ill-treatment,  or  against  loss  by  throwing  overboard  of  slaves 
on  any  account  whatsoever,  &c.  {c) 

But  in  the  case  of  Lmvrmce  v.  Aberdein^  {d)  where  a  policy  was  on  liv- 
ing animals  warranted  "free  from  mortality  and  jettison:"  and  in  the  course 
of  the  voyage  some  of  the  animals,  in  consequence  of  the  agitation  of  the 
ship  in  a  storm,  were  killed ;  and  others  from  the  same  cause,  received  so  much 
injury  that  they  died  before  the  termination  of  the  voyage  insured:  it  was  held 
that  this  was  a  loss  by  perils  of  the  seas,  for  wiiich  the  underwriters  were 
liable.  And  Bayley,  J.,  says,  "I  think  that  the  words  in  this  exception,  will 
protect  the  underwriters  in  cases  where  the  death  of  the  animal  arises  from 
natural  causes  remotely  produced  by  some  of  the  perils  insured  against;  but 
that  thpy  will  not  protect  him  where  such  death  arises  directly  from  any  of  the 
perils  insured  against." 

In  an  action  of  Rohl  v.  Parts  {c)  on  a  policy  of  insurance  at  and  from  Saint 
Bartholomew  to  the  coast  of  Africa  and  during  her  stay  and  trade  there  and 
P  *o'~7  -|  back  to  Saint  Bartholomew^  *it  was  attempted,  under  a  count  for 
L  J  a  loss  by  perils  of  the  sea,  to  recover  for  a  total  loss  of  the  ship, 

which  appeared  to  have  been  destroyed  by  a  species  of  worms  which  infest  the 
rivers  of  Africa.  An  intelligent  merchant  swore,  that  he  had  known  many 
instances  of  this  species  of  loss,  but  that  the  underwriters  had  invariably  refused 
to  pay.  Lord  Kenyon^  upon  this  evidence,  and  the  unanimous  declaration  of 
the  jury,  decided  that  it  was  not  a  loss  by  perils  of  the  sea.  [a) 

In  an  action  of  Fletcher  v.  Inglis,  (b)  on  a  policy  of  insurance  on  ship  "at 
and  from  any  port  or  ports,  place  or  places,  in  port,  at  sea  in  government  ser- 
vice for  twelve  months,  warranted  free  from  capture  and  seizure."  The  loss 
was  averred  to  be  by  perils  of  the  sea.  At  a  trial  before  Chief  Justice  Abbott, 
at  Gmldhall,  it  appeared  that  the  ship  insured  was  a  transport  engaged  in  the 
service  of  government,  and  that  in  the  course  of  such  service,  and  within  the 
term  mentioned  in  tlie  policy,  she  was  ordered  into  Boulogne;  where,  under 
the  direction  of  the  superintendent  of  transports,  she  was  moored  near  one 
of  the  quays.  The  harbour  of  Boidogne  is  a  dry  harbour,  with  a  hard  un- 
even bottom.  Between  nine  and  ten  at  night,  the  tide  ha\ing  left  the  vessel, 
a  cracking  noise  was  heard  in  the  ship,  proceeding,  as  the  witness  believed, 
from  something  breaking.  Some  time  after  this,  on  the  return  of  the  tide, 
there  was  a  considerable  swell  in  the  harbour,  and  the  ship  struck  the  ground 
hard  several  times :  in  the  morning,  eighteen  of  the  knees  were  tbund  to  be 
broken.  This  action  was  brought  to  recover  the  amount  of  the  expense  in- 
curred by  the  assured  in  repairing  the  damage.  The  jury  found  a  verdict  for 
the  plainlifT.  Upon  a  motion  for  a  new  trial,  It  was  contended  for  the  defendant, 
that  the  loss  did  not  arise  from  any  extraordinary  accident,  and  was,  there- 
fore, not  a  '■'-peril  of  the  sea:''  and  Thompson  v.  JVitmore,  (c)  was  referred 
r  '278  "1  ^^'  where  a  transport  having  been  hove  *down  upon  a  beach  to 
J  repair,  was  there  bilged,  and  it  was  held  not  to  be  a  "peril  of  the 
sea."     The  Court  having  taken  time  to  consider,  Abbott,  C.  J.,  said,  that  the 


(/;)   30  Geo.  3,  c.  33,  s.  8;  3i  Geo.  3,  c.  60;  39  Geo.  3,  c.  80,  s.  24. 
{(i)  5  B.  &  A.  107.  (e)  Guildhall,  after  Hill.  1796.   Park,  142. 

(a)   And  it  has  been  held  that  a  loss  arising  from  rats  eating  holes  in  the  bottom  of  a  ship 
IS  not  withm  any  of  the  perils  enumerated  in  the  policy.      Hunter  v.  Potts,  3  Camp.  20C. 
(6)  2  B.  &  A.  315.     See  also  the  case  of  Phillips  v.  Barber,  5  B.  &  A.  161. 
(0  3  Taunt.  227. 


PERILS    OF    THE    SEA,   FIRE,   ETC.  153 

Court  had  considered,  and  they  had  thought  it  was  a  ^^ peril  of  the  sea.''* 
And,  therefore,  the  rule  was  refused. 

Secondly,  under  this  section  we  will  consider  the  next  risk  mentioned  in  the 
policy,  viz:  "Fire,"  which  is  insured  against  by  the  underwriters  in  the  ex- 
press terms  in  the  policy. 

The  first  case  I  shall  refer  to  on  the  subject  is  the  important  case  of  Pelly  v. 
The  Governor  and  Company  of  Royal  Exchange  Assurance,  (a)  This  cause 
came  before  the  Court  on  a  case  reserved  for  their  opinion,  after  a  trial  and 
verdict  for  the  plaintiff,  at  Guildhall,  before  Lord  Mansfield.  The  case  stated 
"that  the  plaintiff,  being  part-owner  of  the  ship  Onslouu  an  East  India  ship, 
then  lying  in  the  Thames,  and  bound  on  a  voyage  to  China,  and  back  again 
to  London,  insured  it  "at  and  from  London,  to  any  ports  or  places  beyond 
the  Cape  of  Good  Hope,  and  back  to  I^ondon,  free  from  average,  under  ten 
per  cent,  upon  the  body,  tackle,  apparel,  ordnance,  munition,  artillery,  boat, 
and  other  furniture  of  and  in  the  said  ship :  beginning  the  adventure  upon  the 
said  ship,  from  and  immediately  following  the  date  of  the  policy,  and  so  to 
continue  and  endure  until  the  ship  shall  be  arrived  as  above,  and  there  anchored 
twenty-four  hours  in  good  safety."  The  perils  mentioned  in  the  policy  were 
the  common  perils,  viz:  "  of  the  seas,  men-of-war,  fire,"  &c.  The  ship 
arrived  in  the  river  Canton,  in  China,  where  she  was  to  stay  to  clean  and 
refit,  and  for  other  purposes.  Upon  her  arrival  there,  the  sails,  yards,  tackle, 
cables,  rigging,  apparel,  and  other  furniture,  were,  by  the  captain's  order,  taken 
out  of  her,  and  put  into  a  warehouse  or  storehouse,  called  a  bank-saul,  built 
for  that  purpose  on  a  sand-bank,  or  small  island,  lying  in  the  said  river,  near 
one  of  the  banks  called  Bank-saul  Island,  in  order  to  be  there  repaired,  kept 
dry,  and  preserved,  till  the  ship  should  be  heeled,  cleaned,  and  refitted.  Some 
time  after  this,  a  fire  broke  out  in  the  bank-saul,  belonging  to  a  ^  ^970  -1 
Swedish  *ship,  and  communicated  itself  to  another  bank-saul,  and  L  J 

from  thence  to  that  belonging  to  the  Onslow,  and  consumed  the  same,  together 
with  all  the  sails,  yards,  &lc.,  belonging  to  the  Onslou;  that  were  therein. 
The  case  states  further,  that  it  was  the  universal  and  well-known  usage,  and 
has  been  so  for  a  great  number  of  years,  for  all  European  ships  which  go  a 
China  voyage,  except  Dutch  ships,  (who  for  some  years  past  have  been  denied 
this  privilege  by  the  Chinese,  and  who  look  upon  such  denial  as  a  great  loss) 
when  they  arrive  near  this  Bank-saul  Island,  in  the  river  Canton,  to  unrig 
the  ships,  and  to  take  out  their  sails,  yards,  tackle,  cables,  rigging,  apparel, 
and  other  furniture ;  and  to  put  them  on  shore  in  a  bank-saul,  budt  for  that 
purpose  on  the  said  island,  (in  the  manner  that  had  been  done  by  the  captain 
of  the  Onsloiv  on  the  present  occasion)  in  order  to  be  repaired,  kept  dry,  and 
preserved,  until  the  ships  should  be  heeled,  cleaned,  and  refitted.  The  case 
adds,  that  so  doing  is  prudent,  and  for  the  common  and  general  benefit  of  the 
owners  of  the  ship,  the  insurers,  and  insured,  and  all  persons  concerned  in  the 
safety  of  the  ship.  The  ship  arrived  from  her  said  voyage  in  the  Thames, 
having  been  again  rigged,  and  put  in  the  best  condition  the  nature  of  the  place 
and  circumstances  of  affairs  would  permit.  The  question  for  the  opinion  of 
the  Court  was,  whether  the  insurers  are  liable  to  answer  for  this  loss,  so  hap- 
pening upon  the  bank-saul,  within  the  intent  and  meaning  of  this  policy  } 

The  Court,  after  a  solemn  argument,  took  time  to  consider  the  question, 
and  then  Lord  Mansfield  delivered  the  unanimous  opinion  of  the  Court  for  the 
plaintiff. 

Lord  Mansfield. — "By  the  express  words  of  the  policy,  the  defendants 
have  insured  the   'tackle,  apparel,   and  other  furniture  of  the  Onslow,'  from 

(«)    1  Burr.  341,  before  referred  to,  ante,  p,  197. 


154  PERILS    OF    THE    SEA,   FIRE,   ETC. 

/?rp,  during  the  whole  of  her  voyage,  until  licr  return  in  safety  to  London, 
without  any  restriction.  Her  tackle,  apparel,  and  furniture,  were  inevitably 
burnt  in  China,  during  her  voyage,  before  her  return  to  London.  The  event, 
then,  which  has  happened,  is  a  loss  within  the  geneial  words  of  the  policy  ; 
and  it  is  incumbent  upon  the  defendant  to  show,  from  the  manner  in  which 
r  *9«n  1  ^^'^  ^misfortune  happened,  or  from  other  circumstances,  that  it 
L  J  ought  to  be  construed  a  peril,  which  they  did  not  undertake  to 

bear.  If  the  chance  be  varied,  or  the  voyage  altered,  by  the  fault  of  the  owner 
or  master  of  the  ship,  the  insurer  ceases  to  be  lial)le;  because  he  is  only  under- 
stood to  engage  that  the  thing  shall  be  done  safe  from  fortuitous  dangers,  pro- 
vided due  means  are  used  by  the  trader  to  attain  that  end.  («)  But  the  master 
is  not  in  fault,  if  what  he  did  was  done  in  the  usual  course,  and  for  just  rea- 
sons. The  insurer,  in  estimating  the  price  at  which  he  is  willing  to  indemnify 
the  trader  against  all  risks,  must  have  under  his  consideration  the  nature  of  the 
voyage  to  be  performed,  and  the  usual  course  and  manner  of  doing  it.  Every 
thing  done  in  the  usual  course  must  have  been  foreseen  and  in  contemplation 
at  the  time  he  engaged ;  he  took  the  risk  upon  a  supposition  that  what  Mas 
usual  or  necessary  should  be  done.  In  general,  what  is  usually  done  by  such 
a  ship,  with  such  a  cargo,  in  such  a  voyage,  is  understood  to  be  referred  to  by 
every  policy,  and  to  make  a  part  of  it  as  much  as  if  it  were  expressed.  The 
usage  being  foreseen  is  rather  allowed  to  be  done,  than  what  is  left  to  the  mas- 
ter's discretion,  upon  unforseen  events ;  yet  if  the  master  ex  justa  cansci,  go 
out  of  the  way,  the  insurance  continues.  Upon  these  principles  it  is  difficult  to 
frame  a  question  which  can  arise  out  of  this  case,  as  stated.  The  only  objec- 
tion is,  that  they  were  burnt  in  a  bank-saul,  and  not  in  the  ship ;  upon  land — 
not  at  sea,  or  upon  water  :  and,  being  appertincnt  to  the  ship,  losses  and  dan- 
gers ashore  could  not  be  included.  The  answer  is  obvious.  First,  the  words 
make  no  such  distinction :  secondly,  the  intent  makes  no  such  distinction. 
Many  accidents  might  happen  at  land,  even  to  the  ship.  Suppose  a  hurricane 
to  drive  it  a  mile  on  shore;  or  an  earthquake  may  have  a  like  effect.  Suppose 
the  ship  to  be  burnt  in  a  dry  dock  ;  or  suppose  accidents  to  happen  to  the 
r  *281  1  **^^^^^  ^^PO"  ^^"^'  taken  from  the  ship,  while  accidentally  and 
^  -•  occasionally  refitting,  as  on  account  of  a  hole  in  its  bottom  or  other 

mischance.  These  are  all  possible  cases.  But  what  might  arise  from  an  acci- 
dental repair  of  the  ship  is  not  near  so  strong  as  a  certain,  necessary  conse- 
quence of  the  ordinary  voyage,  which  the  parties  could  not  but  have  in  their 
direct  and  immediate  contemplation.  Here  the  defendants  knew  that  the  ship 
must  be  heeled,  cleaned,  and  refitted,  in  the  river  of  Canton :  they  knew  that 
the  tackle  would  then  be  put  in  the  bank-saul :  they  knew  it  was  for  the  safety 
of  the  ship,  and  prudent  that  they  should  be  put  there.  Had  it  been  an  acci- 
dental necessity  of  refitting,  the  master  might  have  justified  taking  them  out  of 
the  ship,  ex  justa  causa :  but  describing  the  voyage  is  an  express  reference  to 
the  usual  manner  of  making  it,  as  much  as  if  every  circumstance  was  men- 
tioned. Was  the  chance  varied  by  the  fault  of  the  master,^  It  is  impossible 
to  impute  any  fault  to  him.  Is  this  like  a  deviation?  No  :  'tis  ex  justa  causa, 
whicli  always  excuses.  Had  the  insurers  in  this  case  been  asked  whether  the 
tackle  should  be  put  in  the  bank-saul  ?  they  must,  for  their  own  sakes,  have 
msisted  that  it  should.  They  would  have  had  reason  to  complain,  if,  from  their 
not  being  put  there,  a  misfortune  had  happened.  In  such  a  case  the  master 
would  have  been  to  blame,  and  by  his  fault  would  have  varied  the  chance. 


(o)  If  the  underwriter  insures  against  the  barratry  of  the  master,  he  would  be  liable  for 
his  misconduct.  And  see  post,  that  in  general  the  insurer  is  not  discliarged  by  reason  of 
the  fault  or  negligence  of  the  master  and  mariners. 


PERILS    OF    THE    SEA,   FIRE,   ETC.  155 

They  have  taken  a  price  for  standing  in  the  plaintiff's  place,  as  to  any  losses  he 
might  sustain  in  performing  the  several  parts  of  the  voyage,  of  which  this  was 
known  and  intended  to  be  one.  Therefore  we  are  all  of  opinion,  that  in  every 
light,  and  in  every  view  of  this  case,  in  reason  and  justice,  and  within  the 
words,  intent,  and  meaning  of  this  policy,  and  within  the  contemplation  of  the 
parties  to  the  contract,  the  assurers  are  liable  to  answer  this  loss." 

This  case  has  been  confirmed  by  Lord  Kenyon„  and  the  whole  Court  of 
King's  Bench,  in  the  case  of  Brough  v.  IVIiitmore.  (d) 

*It  has  been  observed,  that  the  immediate  and  not  the  remote  p  ^^go  "1 
cause  of  a  loss  is  that  which  is  looked  to  by  the  Court  in  constru-  >-  -^ 

ing  a  policy;  and  if  this  be  covered  by  the  terms  expressed  by  the  policy,  the 
underwriters  are  liable,  altliougli  the  event  may  be  attributable,  in  the  first 
instance,  to  a  remote  cause  of  a  different  description,  (a) 

Thus  in  a  late  case  of  Gordon  v.  Rhnmington,  (b)  it  became  a  question, 
whetlier  a  voluntary  burning  of  a  ship,  to  prevent  her  from  falling  into  the 
hands  of  the  enemy,  be  a  loss  "by  fire,"  within  the  policy.^  Lord  Ellen- 
borough  said,  "-The  case  is  new,  but  I  am  clearly  of  opinion  that  the  plaintiff 
is  entitled  to  recover.  Fire  is  expressly  mentioned  in  the  policy,  as  one  of  the 
perils  against  which  the  underwriters  undertake  to  indemnify  the  assured;  and 
if  the  ship  is  lost  by  "fire,"  it  is  of  no  consequence  whether  this  is  occasioned 
by  a  common  accident  or  by  lightning,  or  by  an  act  done  in  duty  to  the  state. 
Nor  can  it  make  any  difference  whether  tlie  ship  is  thus  destroyed  by  third 
persons,  oflicers  of  the  king,  or  by  the  captain  and  crew,  acting  with  loyalty 
and  good  faith.  Fire  is  still  the  causa  causans,  and  the  loss  is  covered  by  the 
policy."     The  plaintiff  had  a  verdict. 

So  also  when  the  immediate  cause  of  the  loss  was  "fire,"  occasioned  by  the 
negligence  of  the  crew,  it  was  held  that  the  assurers  were  liable  on  a  policy  by 
which  the  assured  were  protected  from  "fire." 

Thus  in  the  case  of  Busk  v.  J?oyal  Exchange  Assurance  Company^  (c) 
which  was  an  action  of  covenant  upon  a  policy  of  assurance  on  the  ship  Caro- 
Una,  "at  and  from  Amsterdam  to  St.  Petersburg,''''  the  policy  was  in  the 
usual  form,  and  stated  among  other  risks  which  the  defendants  took  upon  them- 
selves, "fire,  barratry  of  the  master  and  mariners,  and  all  other  perils,  losses, 
and  misfortunes,"  &;c.  The  declaration  alleged  that  during  the  voyage,  the 
ship  was  consumed  by  fire.  It  appeared  that  the  master  of  the  p  ^.^g^  -, 
Carolina  upon  *arriving  at  Biorkoo  Sound  on  the  25th  of  Novem-  L  J 

ber,  paid  off  the  crew,  left  the  ship  in  the  care  of  the  mate,  and  proceeded 
upon  business  to  St.  Petersburg  ;  the  mate  continued  in  charge  of  the  ship  till 
the  9th  of  January  following.  On  that  day  he  lighted  a  fire  in  the  ship's 
cabin,  and  in  the  evening,  without  leaving  any  body  on  board,  he  went  on  board 
another  ship  lying  contiguous.  At  twelve  o'clock  at  night  he  looked  out  from 
the  ship  he  was  in,  found  every  thing  quiet,  and  went  to  bed.  In  the  morning 
he  was  alarmed  by  fire.  The  vessel  was  soon  consumed.  It  was  admitted  the 
loss  arose  from  the  negligence  of  the  mate  in  lighting  a  fire  in  the  cabin,  and 
not  seeing  that  it  was  properly  extinguished.  The  jury  found  a  verdict  for  the 
defendants.  Upon  a  motion  for  a  new  trial,  it  was  olijected  for  the  defendants, 
that  as  the  loss  was  admitted  to  have  taken  place  by  tlie  negligence  of  the  mate, 
and  as  that  did  not  by  the  law  of  England  amount  to  barratry,  and  as  the 
assured  had  protected  themselves  from  the  consequences  of  the  fraud  only,  and 
not  of  the  negligence  of  the  master  and  mariners,  he  was  not  entided  to  recover 
on  the  terms  of  the  policy.      Bayley,  J.,  "The  policy  expressly  throws  upon 


(d)  4  T.  R.  ante,  p.  91.  (a)  Ante,  p.  268. 

lb)   I  Camp.  123.  (c)  2  B.  &  A.  73. 


156  PKUILS    OF    THE    SEA,   FIRK,  ETC. 

the  uiulerwritors  tlio  linhility  for  all  losses  proceeciiiif^  from  'fire,  barratry  of  llie 
master  ami  mariners,  and  all  otlior  perils,'  &,c.  Tin;  object  of  the  assured  was 
certainly  to  protect  liimself  against  all  risks  incident  to  marine  adventure.  The 
underwriter  being,  therefore,  liable  prima  facie  by  the  express  terms  of  the 
policy,  it  lies  upon  him  to  discharge  himseif.  Does  he  do  so  by  shewing  that 
the  fire  arose  from  the  negligence  of  the  master  and  mariners.^  If  tlie  ship  had 
been  wilfully  set  on  fire,  it  would  have  been  barratry,  and  the  underwriters 
would  be  liable,  but  it  has  been  argued,  that  the  underwriters  are  only  liable  for 
a  loss  by  barratry,  because  that  is  one  of  the  risks  expressly  mentioned  in  the 
policy,  and  that  tlie  negligence  of  the  master  and  mariners  not  being  a  risk 
expressly  descrilied  in  the  policy,  the  underwriters  are  not  liable  for  a  loss 
thereby  occasioned.     In  this  case,   however,   the  loss  is  occasioned  by  fire, 

,  -,  against  which  the  assured  is  protected  by  the  terms  of  *the  policy; 

L  ■■^*''*  J  .ji^j^  in  our  law,  at  least,  (here  is  no  authority  which  says  that  the 
underwriters  are  not  liable  for  a  loss,  the  proximate  cause  of  which  is  one  of 
the  enumerated  risks,  but  the  remote  cause  of  which  may  be  traced  to  the  mis- 
conduct of  the  master  and  mariners.  If,  indeed,  the  negligence  of  the  master 
would  exonerate  the  underwriter  from  responsibility  in  case  of  a  loss  by  fire, 
it;  would  also  do  so  in  cases  of  loss  by  capture  or  perils  of  the  sea  :  and  it  would, 
therefore,  constitute  a  good  defence  in  an  action  upon  a  policy,  to  shew  that  the 
captain  had  misconducted  himself  in  the  navigation  of  the  ship,  or  that  he  had 
not  resisted  an  enemy  to  the  utmost  of  his  power.  It  is  certainly  a  strong 
argument  against  the  objection  now  raised  for  the  first  time,  that  in  the  great 
variety  of  cases  upon  marine  polici(^s,  which  have  been  the  subjects  of  litigation 
in  Courts  of  Justice  (the  facts  of  which  must  have  presented  a  ground  for  such 
a  defence)  no  such  point  has  ever  been  made."  The  learned  Judge,  after  refer- 
ring to  the  foreign  authorities  upon  the  subject,  (o)  proceeds  thus,  "We  must, 
therefore,  endeavour  to  collect  the  meaning  of  the  contracting  parties  from  the 
terms  of  the  policy  itself,  and  in  considering  whether  the  assured  claiming  for 
a  loss  by  fire,  is  to  have  that  claim  disallowed  on  the  ground  that  the  fire  was 
occasioned  by  the  misconduct  of  the  master  and  mariners  :  we  must  look  to  the 
other  terms  of  the  policy,  and  learn  from  them  whether  the  assurers  in  other 
instances  are  responsible  for  the  misconduct  of  the  master,  and  when  we  find 
that  they  make  themselves  answerable  for  the  wilful  misconduct  of  the  master; 
in  other  cases  it  is  not  too  much  to  say,  they  meant  to  indemnify  the  assured 
against  fire  proceeding  from  the  negligence  of  the  master  and  mariners." 

So  also  it  was  held  in  the  case  of  Walker  v.  MaitlantU  ip)  that  the  under- 
writers on  a  policy  were  liable  for  a  loss  arising  from  a  "peril  of  the  sea," 
although  it  was  remotely  owing  to  the  neglect  of  the  master  and  mariners.  For 
r  *285  1  ^'^^  Court  held,  *that  the  immediate  cause  of  the  loss  was  the  vio- 
L  J  lence  of  the  winds  and  the  waves,  and  Chief  Justice  .%bott  said 

that  he  was  afraid  of  laying  down  any  rule  which  would  introduce  an  infinite 
number  of  questions  as  to  the  quantum  of  care  which,  if  used,  might  have 
prevented  the  loss,  (c) 

So  likewise  in  the  case  of  Bishop  v.  Pentland,{d)  where  a  ship  was  stranded 
within  the  meaning  of  that  word  in  the  policy,  it  was  held  that  the  underwriters 
were  liable  for  a  partial  loss,  although  the  stranding  might  have  been  occasioned 
remotely  liy  the  negligence  of  the  crew  in  not  providing  a  rope  of  sufficient 
strength  to  fasten  the  vessel  to  the  shore. 


(a)  See  Pothier  traite  du  Contrat  d'Assurance,  s.  53.     Valin,  liv.  3,  tit.  6,  des  Assu- 
rances, art.  2G.  1  Emerig.  p.  434.  (i,)   5  B.  &  A.   171. 

(c)  And  see  Heynianv.  Parish,  2  Camp.  148,  and  Blyth  v.  Shepherd,  9  .M.  &  W.  763. 
(rf)  7  B.  &  C.  219.  1  .  ^  f        . 


MEN-OF-WAR,   ENEMIES.   PIRATES,   ETC.  157 


SECTION  XI. 


OF     ••JETTISONS. 


Another  ri^k  which  the  underwriters  take  upon  themselves  is  that  of  •'jet- 
tisoii."  Upon  which  subject  the  case  of  Bullcr  v.  JVildman,  (c)  is  an  author- 
ity. The  circumstances  of  that  case  were  these  : — a  captain  of  a  Spanish  ship, 
in  order  to  prevent  a  quantity  of  dolhirs  from  faUinff  into  the  hands  of  the 
enemy,  by  whom  he  was  about  to  be  attacked,  threw  them  into  the  sea,  and 
was  immediately  after  captured:  the  policy  was  in  the  conimoa  form,  one  of 
the  risks  taken  upon  by  the  underwriters  heinrr  ••jettisons,"  expressed  in  the 
policy.  There  was  a  demurrer  to  the  declaration.  Mbott.  C.  J.,  after  refer- 
ring to  the  form  of  the  declaration,  said,  ''the  question  then  arises  whether  this 
be  a  loss  for  which  the  underwriters  are  liable.  I  am  of  opinion  that  this  is  a 
loss  bv  jettison,  or  if  not.  strictly  speaking,  by  jettison,  it  is  something  ejifsdem 
p^cneris,  and  tlierefore  tails  within  the  general  words,  'all  other  losses  and  mis- 
fortunes,' "  &sc.  Jettison,  in  its  largest  *sense,  however,  signifies  p  ^^^qp  -\ 
any  throwing   overboard  :   but  in  its  ordinary  sense   it  means  a  L  J 

throwing  overboard  for  the  preservation  of  the  ship  and  cargo,  and  most  of  the 
jurists  treat  of  it  in  this  sense,  under  the  head  of  general  average.  The  present 
case  is  an  extraordinary  species  of  jettison.  I  cannot,  however,  distinguish  it 
in  principle,  from  the  case  where  the  captain  sets  fire  to  his  ship  to  prevent  her 
falling  into  the  hands  of  tl\e  enemy.  Now  it  is  laid  down,  by  Emerigon  and 
Pothier,  that  the  underwriters  are  liable  for  such  a  loss  ;  and  I  think,  therefore, 
thev  are  so  in  the  present  case."  And  Ben/ley.  .T.,  says,  "I  am  of  the  same 
opinion.  If  the  dollars  had  not  been  thrown  overboard,  it  is  clear  that  they 
would  have  fallen  into  the  hands  of  the  enemy,  for  the  ship  was,  in  point  of 
fact,  taken:  and  if  the  loss  here  stated  had  been  declared  upon  as  a  loss  by 
jettison,  or  by  enemies,  or  within  the  concludins;  words  'all  other  losses  and 
misfortunes.'  the  facts  stated  would  have  supported  that  averment.  .Tettison,  in 
its  largest  sense,  means  any  throwing  overboard.  In  the  passage  cited  from 
Emerigon.  he  is  treating  of  jettison  with  reference  to  cases  of  general  average, 
where  jettison  is  used  in  a  confined  sense.  But  its  true  meaning,  in  a  policy 
of  insurance,  seems  to  me  to  be  any  casting  overboard  ex  junta  causa.  But 
assuming  that  this  was  not  strictly  'jettison,'  it  is  something  ^ejusdem  generis." 
and  may  therefore  be  comprehended  within  the  words  'all  other  losses  and 
misfortunes.'  " 


SECTION  XII. 

MEN-OF-WAR,   ENEMIES,   PIRATES,   ROVERS,   THIEVES,   ETC. 

This  head  of  the  risks  taken  upon  themselves  by  the  assurers,  refers  to  what 
is  generally  in  one  single  term  called  "capture,"  and  is  of  little  moment,  either 
to  the  assured  or  assurer,  during  the  time  of  peace ;  and,  likewise,  p  *287  "1 
(as  Mr.  J.  Park  remarks  in  his^  Treatise)  even  in  the  time  of  *war  L 


(c)  3  B.  &  A.  398. 


158  MEN-OF-WAR,   ENEMIES,   PIRATES,   ETC. 

the  question  relating  to  captures  as  between  the  assured  and  the  assurer,  is 
of  very  little  difficulty,  (a)  Capture  may  be  said  to  be,  as  applied  to  this  sub- 
ject, the  taking  of  the  ships  or  goods  belonging  to  the  subjects  of  one  country 
by  those  of  another,  when  in  a  time  of  war.  An  important  observation,  how- 
ever, is  to  be  made  here  upon  the  general  terms  used  by  the  assurers  in  the 
policy,  by  which  it  is  to  ])e  seen  tliat  they  take  upon  themselves  to  indemnify 
the  assured  from  the  effect  of  all  capture,  and  detainment  and  restraint  of  all 
princes,  without  any  exception  in  respect  to  the  acts  of  the  government  of  their 
own  nation.  But  it  is  now  quite  setded  by  the  cases  of  Jiell  v.  Potts,  {//)  and 
Fur/ado  v.  Rogprs^  [c)  and  other  cases,  that  all  insurances  of  enemies'  pro- 
perty from  the  eifects  of  capture  by  the  acts  of  die  government  of  the  country 
of  the  underwriter,  are  illegal  at  the  common  law,  and  cannot  be  enforced  in  a 
Court  of  Justice.  Lord  Alvanley,  who  delivered  the  judgment  of  the  Court 
of  Common  Pleas  in  the  latter  of  diese  cases,  in  conclusion  ends  with  these 
words,  "The  ground  upon  which  we  decide  this  case  is,  diat  when  a  British 
subject  insures  against  captures,  the  law  infers  that  the  contract  contains  an 
exception  of  captures  m.ide  by  the  government  of  his  own  country ;  and  that 
if  he  had  expressly  insured  against  British  capture,  such  a  contract  would  be 
abrogated  bv  the  law  of  England.'''' 

The  law  relating  to  this  question  is  perfecUy  setded  in  England.,  and  was 
laid  down  bv  Lord  Mansfield  in  the  case  of  Goss  v.  Withers,  Mich.  Term, 
32  Geo.  2.  {d) 

This  was  a  special  case  from  the  Sittings  in  London  upon  two  actions,  on 
two  distinct  policies  :  one  "on  the  ship,"  the  other  "upon  the  loading."  The 
case  states,  that  the  ship  departed  from  her  proper  port  and  was  t^iken  by  the 
French  on  the  23rd  December,  1756,  and  that  the  master,  mates,  and  all  the 
sailors,  except  an  apprentice  and  landsman,  were  taken  out  and  carried  to 
r  *''88  1  ^^"^^'^^>  ^^^'■^^  ^'^*^  ^hip  remained  in  the  *hands  of  the  enemy  eight 
L  "  J  days,  and  was  then  retaken  by  a  British  privateer,  and  brought  in 
on  the  18th  January  to  Milford  Haven:  and  that  immediate  notice  was  given 
by  the  assured  to  the  assurers,  with  an  offer  to  abandon  the  ship  to  their  care. 
It  was  also  proved  at  the  trial,  that  before  the  taking  by  the  enemy  a  violent 
storm  arose  at  sea,  Avhich  first  separated  the  ship  from  her  convoy,  and  after- 
wards so  far  disabled  her  as  to  render  her  incapable  of  proceeding  on  her  des- 
tined voyage  without  going  into  port  to  refit.  It  was  also  proved,  that  part  of 
the  cargo  was  thrown  overboard  in  the  storm,  and  die  rest  of  it  was  spoiled 
whilst  the  ship  was  at  Milford  Haven,  after  the  offer  to  abandon,  and  before 
she  could  be  refitted. 

Several  questions  arising-  upon  the  trial  of  the  first  said  causes,  it  was  agreed 
that  the  jury  should  bring  in  dieir  verdict,  in  both  cases,  for  the  plaintiffs,  as 
for  a  total  loss,  subject,  however,  to  the  opinion  of  the  Court  on  the  following 
questions,  viz  : — 

1st.  Whedier  this  capture  of  the  ship  by  the  enemy  was  or  was  not  such  a 
loss  as  that  the  assurers  became  liable  thereby? 

2ridly.  Whether,  under  the  several  circumstances  of  this  case,  die  assured 
had  or  had  not  a  right  to  abandon  the  ship  to  the  assurers,  after  she  was  carried 
into  Milford  Haven? 

Tim  case  was  argued  twice,  viz:  first,  on  Tuesday,  6th  June,  1758,  by 
Mr.  Morton  for  die  plaintiffs,  and  Mr.  Serjeant  Davy' (or  the  defendant;  and 
again  on  Friday,  10th  November,  1758,  by  Mr.  Norton  for  the  plaintiffs,  and 
tMr  liichard  IJoyd  for  the  defendanu 


(r;)   Parkins    150.  (i)  8  T.  R.  548. 

(c)3I3.  &1M91.  (rf)  2  Burr.  683. 


MEX-OF-WAR,   ENEMIES,   PIRATES,   ETC.  159 

Mr.  Morton  and  Mr.  Norton,  on  behalf  of  the  plaintiffs,  argued  for  the 
affirmative  on  both  questions,  (rf) 

They  previously  distinguished  between  cases  disputed  between  the  assured 
and  assurers,  and  those  between  owners  and  recapiors,  and  observed  that  this 
is  a  mere  contract  between  the  parties. 

*First  point. — This  is  such  a  total  loss  as  renders  the  assurers  ^  *oQq  -i 
liable  to  answer  for  it.  L  J 

The  counsel  said  they  would  consider,  first,  what  an  insurance  is;  and, 
secondly,  Avhat  a  capture  by  an  enemy  is. 

1st.  The  definition  of  an  insurance  is  in  Bynkershoek^s  Qiiaestiones  publici 
Juris.  («) 

2ndly.  A  capture  is,  when  tliere  is  no  just  ground  of  hope  of  recovering  the 
ship,  then  it  becomes  the  property  of  the  captor — Grot'ms.  (b) 

And  the  period  of  the  time  of  detention  is  another  ride,  viz  :  being  twenty- 
four  hours  in  potestate  hostium.  Indeed,  subsequent  writers  do  not  fix  it  so 
precisely,  but  they  are  treating  only  upon  salvage,  (c)  Bynkershoek,  indeed, 
differs  in  the  premises,  (r/)  but  both  agree  in  the  conclusion:  for  he  also  puts 
it  upon  the  despair  of  the  recovery  of  the  ship ;  and  this  hope,  or  despair, 
must  be  a  reasonable  and  just  one,  not  a  whimsical  and  arbitrary  fancy,  or  a 
mere  wish. 

This  vessel  was  eight  days  in  possession  of  tlie  enemy,  near  a  month  out  of 
the  power  of  the  owners,  (the  assured)  and  almost  all  the  hands  taken  out.  So 
that  by  the  terms  and  intent  of  the  insurance,  (which  must  be  taken  favourably 
for  the  assured)  this  must  be  taken  to  have  been  totally  defeated  to  the  assured, 
the  adventure  totally  stopped,  and,  consequently,  the  condition  broken  as 
between  the  assurers  and  the  assured. 

This  is  a  total  loss :  it  was  so  long  in  the  possession  of  the  enemy  that  the 
"  s/>C5  recMperamW  was  gone. 

Tliough  this  ship  was  not  carried  into  port,  nor  within  the  enemy's  fleet,  yet  it 
was  eight  days  in  the  possession  of  the  enemy,  and  it  might  have  been  as  many 
months ;  ancl  the  spcs  recuperandi  would  be  as  absolutely  gone  as  if  it  had 
been  carried  into  the  enemy's  fleet,  out  of  wliich  it  might  possibly  be  imme- 
diately retaken.  Therefore,  the  being  ^carried  infra  prsesidia  of  r-  ^nqrx  -i 
the  enemy  cannot  be  the  true  rule,  but  the  true  and  certain  rule  L  -• 

must,  in  reason,  be  where  the  '■'■spes  recuperandV  is  gone.  Indeed,  the  being 
carried  infra  prxsidia  may,  in  many  cases,  be  an  evidence  of  this.  Now, 
upon  the  state  of  the  present  case,  all  hope  of  retaking  was  totally  lost  and 
gone. 

However,  the  principle  of  this  case  is  not  new  ;  for  by  common  law  the 
thing  taken  from  the  owner  in  war  was  gone,  unless  the  owner  makes  fresh 
pursuit,  and  the  property  of  the  thing  so  taken  in  war  belongs  to  the  captor. 
And  the  common  law  rule  is,  that  in  a  war  the  captor  of  a  ship  has  a  right 
to  the  ship  and  goods  taken,  unless  the  owner  makes  fresh  pursuit,  '•'■ante 
occasum  solis,"  7  E.  4,  14.  Vavisour{a)  said,  that  it  was  adjudged  in  the 
time  of  that  same  king,  "q'un  q'prist  tiel  meason  des  enemies  quel  avoit  prise 
devant  d'un  Englishe,  que  il  averoit  ceo  come  chose  gaigne  en  batal,  &c.,  et 
nemy  le  roy  n  I'admiral,  ne  le  partie  a  qui  le  property  fuit  devant,  &c.,  pur 

((f)  The  second  part  is  reserved  for  future  consideration  in  this  Treatise, 
(a)  Lib.  1,  cap.  21. 

(6)  Lib.  3,  cap.  C,  p.  814.  De  jure  Belli  et  Pacis.  "Tunc  enim  desperari  incipit 
recuperatio,"  &c. 

(c)  29  Geo.  2,  c.  34,  p.  572,  s.  24,  (prize  act.) 
{d)   Lib.  1,  cap.  4.      "Qurest.  Juris  Publici." 
(a)  Vavisour  was  not  then  judge,  or  even  a  serjeant. 
Vol.  VII.— M 


160  MEN-OF-WAR,   ENEMIES,   I'IRATES,   ETC. 

ceo  q'  le  partic  no  vieiit  frpshnient,  iiieme  le  jour  q'  il  fiiit  prisp  do  luy,  pt  niitp 
occasum  solis,  ct  c-laiiiie  ceo."  And  tliis  detciiniiiation  lias  never  l)ecn  shaken 
bv  <iny  common  law  resolution,  it  has  rather  been  confirmed  and  recognized. 

'  This  Court  will  follow  the  determinations  of  llu;  common  law,  and  ilie  three 
acts  of  Parliament  made  in  the  present  niiirn,  {/>)  (which  are  all  upon  this  head,) 
are  built  upon  the  same  principles.  'J'he  savinir  clause,  (c)  in  29  Goo.  2,  c. 
34,  supposes  the  right  of  the  owner  to  be  extinguished  and  gone,  and  that  the 
captor  had  a  right  to  the  thinsr  taken:  otherwise  the  Parliament  had  no  right  to 
impose  upon  the  original  owners  such  terms  of  jiayment  for  salvage.  Tlie 
act  itself  even  calls  them  the  former  owners,  and  it  is  the  bounty  of  the  act  to 
restore  to  them  any  part  at  all.  No  mischief  can  arise  from  this  construction ; 
many  inconveniences  will  llow  from  a  contrary  one.  The  Courts  of  law  will 
put  liberal  constructions  upon  policies  of  insurance. 

"1  *Th's  principle  was  recognized  in  Drnn  v.  Dlrl;ft\  («)  which 
L  '^'^'^  J  was  an  insurance  on  "'goods,"  by  the  Durtihij  dalhif,  "interest 
or  no  interest,"  at  and  from  Jamciicn  to  Jiri^fol.  In  her  jjassa^re  she  was  taken 
by  a  Spanish  privateer,  and  carried  into  Mores,  a  port  in  Spabu  kfipt  eight 
days,  and  cut  out  by  an  Enp^lhh  ship.  And  the  plaintiff  insisting  that  this, 
though  "on  goods,"  was  to  be  considered  as  a  wager  on  the  bottom  of  the 
ship,  brought  his  action  as  upon  a  total  loss.  The  defendant  insisted  that,  by 
the  statutes  13  Geo.  2,  c.  4,  and  17  Geo.  2,  c.  .34,  this  ship  is  to  be  restored 
to  the  owners  upon  paying  salvage  :  and  consequently,  this  was  only  an  average 
loss,  and  the  plaintiff  can  only  recover  on  a  total  loss.  IJut  ('hief  Justice  Lee 
held,  that  in  this  the  plaintiff  ought  to  recover;  for  his  is  a  wager  upon  a  total 
loss  in  the  voyage,  and  here  has  happened  one  :  the  beincr  carried  into  port,  and 
detained  eight  days,  makes  one.  And  where  the  policy  is  "interest  or  no 
interest,"  die  provisions  of  the  acts  in  the  case  of  valued  policies  cannot  take 
place.  The  act  does  not  declare  the  property  is  not  gone  by  such  a  capture, 
but  only  provides  for  restorincr  the  ship  to  whom  it  did  belong,  and  shall  be 
proved  to  have  belonged.  He  said  it  might  be  otherwise  where  the  recapture 
was  made  before  the  ship  was  infra  praesidio,  or  in  the  case  of  goods  actually 
on  board,  and  on  a  valued  policy.  This  is  a  question  only  between  the  assurer 
and  the  assured ;  and  the  assurer  had  undertaken  against  all  sorts  of  perils  for 
premiums  received.  And  here  the  vovage  was  totally  lost,  and  the  cargo  cntirely 
perished.  So  that  there  could  be  no  doubt  as  to  the  real  justice  of  the  case.  (6) 
Sir  Richard  Lloyd  and  Mr.  Serjeant  Davy,  on  behalf  of  the  defendant,  argued 
upon  the  same  two  points,  but  made  very  different  deductions.  First,  the 
assurers  could  not  be  liable  as  for  a  total  loss  (thousjh  they  agreed  it  was  an 
average  loss.)  The  capture  of  the  ship  was  not  a  total  loss.  The  property 
was  not  divested  out  of  the  owners :  a  mere  capture,  without  being  carried 
r  *292  ~\  ^'}f^^  prsesidia,  or  some  such  other  circumstance,  *will  not  alter 
•-  J  the  property.     The  taking  out  the  mariners,  and  putting  in  the 

enemy's  crew,  is  not  enough  to  do  it;  nor  is  the  detaining  it  eight  days.  In 
the  case  of  Assievedo  v.  Cambridge,  the  Court  held  this  to  be  very  plain. 
"that  the  property  was  not  there  altered  by  the  taking."  Yet  in  that  case  there 
was  nine  days'  possession.  («)     Dr.  Henchman,  in  arguing  for  the  defendant, 


(i)  Geo.  2.  (c)  24  Sec. 

(«)  2  Strange,  1250. 

{h)  The  second  point  in  this  case  is  deferred  for  a  subsequent  consideration  in  this  Trea- 
tise. 

(a)  The  reporter  here  remarks  in  the  margin,  that  there  is  no  determination  of  the  case 
Itself  in  Lucas.  He  rojiorts  it  to  be  adjourned  for  further  argument.  Mr.  J.  Foster  said, 
that  Lucas's  report  of  tliat  case,  (of  which  he  himself  had  a  note)  was  a  pretty  good  one. 
See  ante,  p.  26,  where  that  case  is  referred  to. 


MEN-OF-WAR,   ENEMIES,   PIRATES,  ETC.  161 

said,  that  the  question  would  not  have  borne  a  dispute  in  the  Admiralty  Court, 
for  that  the  law  is  clear  "that  not  length  of  time,  but  the  bringing  infra  prsesi- 
dia,  is  that  which  divests  the  property;"  and  he  cited  a  case  of  four  years' 
possession  not  altering  the  property ;  and  he  cited  a  great  many  authorities,  to 
prove  that  the  property  is  not  divested,  without  bringing  the  ship  infra  prx- 
sidin. 

Bynkershoek's  Quxstiones  Juris  Publici,  lib.  1,  c.  4,  is  contrary  to  Gro- 
tius's  opinion,  and  says  "that  length  of  time  alone  is  not  sufficient  to  divest 
the  property."  [b] 

Bynkershoek^s  opinion  is  "that  there  neither  is,  nor  can  any  general  rule 
be,  laid  down  ibr  a  limit;  but  every  case  must  depend  upon  its  own  circum- 
stances." 

Lord  Mansfield  here  observed. — "He  does  say  so.  And  he  combats  the 
opinion  of  Grotius^  (supported  by  many  other  writers)  that,  twenty-four  hours' 
quiet  possession  is  the  fixed  rule." 

There  is  a  common  law  case  in  March,  110,  pi.  188,  "That  the  property 
is  not  altered,  unless  the  ship  be  brought  infra prsesidia  of  the  enemy." 

The  counsel  for  the  plaintiffs,  in  reply,  insisted, 

That  the  totality  of  capture  depended  upon  the  spes  remperayidi,  and  here 
was  none.  The  average  loss  here  stipulated  *for  is,  when  the  p  *9oo  -i 
voyage  is  performed  without  interruption.      They  do  not  dispute  L  J 

our  principle  of  the  spes  recuperandi  being  the  true  criterion :  but  they  say, 
"our  ships  arc  in  constant  pursuit,  in  seas  frequented  by  our  men-of-war  and 
privateers."  Now  it  is  hard  to  conceive  a  pursuit  without  an  object,  or  even 
a  knowledge  that  a  particular  ship  has  been  taken.  Fresh  pursuit  means,  the 
going  in  quest  of  that  particular  ship  which  is  taken. 

Grotitis,  in  lib.  3,  c.  6,  p.  285,  says,  "Sed  recentiori  jure  gentium  inter 
Europreos  populos  introductum  videmus,  ut  talia  capta  censeantur,  ubi  per  horas 
viginti  quatuor  in  potestate  hostium  fuerint." 

Lord  Mansfield  observed,  that  a  large  field  of  argument  had  been  entered 
into,  and  that  it  would  be  necessary  to  consider  the  law  of  nations ;  our  own 
laws,  and  acts  of  Parliament ;  and  also  the  law  and  custom  of  merchants,  which 
make  a  part  of  our  laws. 

On  the  23rd  November,  1758,  his  Lordship  delivered  the  resolution  of  the 
Court. 

liord  Mansfield. — "It  is  not  necessary  to  confine  what  shall  be  said  to  the 
two  distinct  questions  that  are  stated.  The  general  question  is,  whether  the 
plaintifi's  were,  on  the  18th  January,  1757,  entitled  to  recover  against  the 
assurers  as  upon  a  total  loss,  under  an  offer  'to  abandon  the  ship  and  cargo  to 
the  assurers,'  for  them  to  make  what  advantage  of  salvage  they  could  (for  an 
offer  'to  abandon'  was  then  made,  and  nothing  has  happened  since  that  time 
to  alter  the  case.)  There  is  one  point  which  we  are  all  of  opinion  is  imma- 
terial as  between  the  assurers  and  the  assured,  viz  :  '  whether,  by  this  capture, 
the  property  was,  or  was  not,  transferred  to  the  enemy  by  the  law  of  nations.' 
That  question  can  happen  but  in  two  cases,  namely,  (1st,)  between  the  owner 
and  a  neutral  person,  who  has  bought  the  capture  from  the  enemy;  and  (2nd,) 
between  the  owner  and  reeaptor." 

If  the  ship  taken  by  an  enemy  escapes  from  the  enemy,  or  is  retaken,  or  if 
the  owner  redeems  (ransoms)  the  capture,  *his  property  is  thereby  p  ^cyqA  n 
revested :  which  property  in  the  ship  taken  was,  by  the  law  of  L  "^  -J 
nations,  obtained  by  the  captor. 

(b)  Lord  Mansfield  spoke  well  of  Bynkershoek's  writings,  and  recommended  especially 
his  book  of  Prizes,  Quacstiones,  "Publici  Juris." 


162  MEN-OF-WAR,   ENEMIES,   PIRATES,   ETC. 

The  general  proposition  of  writers  on  tliis  suhjert  is,  that  ''qua-  ah  hostibus 
capiinitur  statirncapientium  fiiint,"  which  is  to  be  understood  when  **  the  engage- 
ment is  over."  Indeed,  nothintr  can  be  said  to  be  Liken,  till  the  engagement 
is  over,  and  that  is  not  over  till  all  immediate  pursuit  has  ceased,  and  all  liope 
of  recovery  is  gone.  This  is  the  definition  of  a  capture,  referred  to  by  our 
Prize  Act,  29  (Jeo.  2,  c.  31,  of  a  sliip  taken  by  the  enemy. 

And,  accordingly.  Foe/,  in  his  Commentary  upon  the  Pandects,  {a)  and 
many  authors  he  refers  to,  maintains,  with  great  strength,  "per  solam  occnpa- 
tioneni  dominium  pra?da!  hostil)us  acquiri. "  One  argument  used  to  prove  it  is, 
"that  the  instant  the  captor  has  got  possession,  no  friend,  no  fellow  soldier  or 
ally,  can  take  it  from  him,  because  it  would  be  a  violation  of  his  property." 

Hut  other  writers  and  states  have  drawn  other  line?,  by  arbitrary  rules:  and 
partly  from  policy,  to  prevent  too  easy  disposition  to  neutrals;  and  partly  from 
equity,  to  extend  the  jus  postliminii  in  favour  of  the  owner.  No  wonder 
there  is  so  great  uncertainly  and  variety  of  notions  amongst  them,  by  fixing  a 
positive  boundary  by  the  mere  force  of  reason  ;  where  the  subject-matter  is 
arbitrary,  and  not  the  object  of  reason  alone.  Some  have  said  from  the  Roman 
law,  (which  was  introduced  in  favour  of  the  liberty  and  condition  of  a  Roman 
citizen  taken  captive)  "that  the  prize  must  be  brought  infra  pnvsidia/'  But 
what  "custody  at  sea  should  be  equal  to  prxsidia  at  land,''  is  a  new  fund  of 
dispute,  and  leaves  the  matter  just  where  it  was. 

The  writers  whom  GrotiuH  follows,  and  the  many  more  who  follow  him, 
and  some  nations  [b)  have  made  twenty-four  hours'  quiet  possession  by  the 
enemy  the  criterion.  But  this  Bynkerslwek,  (c)  and  other  writers  whom  he 
r  *295  1  ^'^^'*^"'^'  ^"'^  ''several  nations,  absolutely  deny.  Some  have  said 
L  J  the  ship  must  be  carried  into  the  enemy's  port,  condemned  there, 

sail  out  again,  and  arrive  at  a  friend's  port.      All  these  circumstances  are  very 
arbitrary  :  and,  therefore,  this  is  generally  exploded. 

I  have  taken  the  trouble  to  inform  myself  of  the  practice  of  the  Court  of 
Admiralty  in  England,  before  any  Act  of  Parliament  commanded  restitution, 
or  fixed  the  rate  of  salvage :  and  I  have  talked  with  Sir  George  Lee,  who  has 
examined  the  books  of  the  Court  of  Admiralty,  and  informs  me,  that  they  held 
the  property  not  changed  so  as  to  bar  die  owner  in  favour  of  a  vendee  or  recap- 
tor,  till  there  had  been  a  sentence  of  condemnation :  and  that  in  the  reign  of 
King  Charles  the  Second,  Sir  Richard  Floyd  gave  a  solemn  judgment  on  the 
point,  and  decreed  restitution  of  a  ship  retaken  by  a  privateer,  after  she  had 
been  fourteen  weeks  in  the  enemy's  possession,  because  she  had  not  been  con- 
demned. Another  case,  upon  the  same  principle,  against  a  vendee,  is  cited  at 
the  end  of  Assievedo  v.  Cambridge,  in  1695.  (a)  after  a  long  possession,  two 
sales,  and  several  voyages. 

But  whatever  rule  ought  to  be  followed  in  favour  of  the  owner,  against  a 
recaptor  or  vendee,  it  can  in  no  w^ay  affect  the  case  of  an  insurance  between 
the  assurer  and  assured.  Upon  an  action  against  the  hundred  for  a  robbery,  a 
question  might  as  well  be  started,  ''whether  the  property  in  the  goods!  as 
against  the  owner  was  changed  by  the  sale."  The  ship  is  lost  by  capture  ; 
though  she  be  never  condemned  at  all,  nor  carried  into  anv  port  or  fleet  of  the 
enemy  :  and  the  assurer  must  pay  the  value.  If,  after  condemnation,  the  owner 
recovers  or  retakes  her,  the  insurer  can  be  in  no  other  condition,  than  if  she 
had  been  recovered  or  retaken  before  condemnation.  The  reason  is  plain  from 
die  nature  of  the  contract.  The  assurer  runs  the  risk  of  the  assured,  and 
unoertakes  to  indemnify :  he  must  therefore  bear  the  loss  actually  sustained, 


(«)  Lib.  49,  tit.  1.5,  vol.  2.  1155.  (i)  Ord.  of  Lewis  XIV. 

(c)  Quaest.  Jur.  Pub.  lib.  i,  c.  4.  («)  Lucas  (79). 


MEN-OF-WAR,   ENEMIES,   PIRATES,   ETC.  163 

and  can  be  liable  to  no  more.     So  that  if  after  *condemnation  the  ^    ^^gp     -i 
owner  recovers  the  ship  in  her  complete  condition,  but  has  paid  L  -• 

salvage,  or  been  at  any  expense  in  getting  her  back,  the  assurer  must  bear  the 
loss  so  actually  sustained,  (a)  The  single  question,  therefore,  upon  which 
this  case  turns  is,  "whether  the  insured  had,  under  all  the  circumstances  upon 
the  18th  of  January,  1757,  an  election  to  abandon.  The  loss  and  disability 
was  in  its  nature  total,  at  the  time  it  happened.  During  eight  days  the  plaintiff 
was  certainly  entided  to  be  paid  by  the  assurer  as  for  a  total  loss :  and  in  case 
of  a  recapture,  the  insurer  would  have  stood  in  his  place.  The  subsequent 
recapture  is  at  best  a  saving  only  of  a  small  part;  half  the  value  must  be  paid 
for  salvage.  The  disability  to  pursue  the  voyage,  still  continued.  The  master 
and  mariners  were  prisoners.  The  charter-party  was  dissolved.  The  freight 
(except  in  proportion  to  the  goods  saved)  was  lost.  The  ship  was  necessarily 
brought  into  an  English  port.  What  could  be  saved  might  not  be  worth  the 
expense  attending  it.  The  subsequent  tide  to  restitution  arising  from  the  re- 
capture, at  a  great  expense,  of  the  ship,  disabled  to  pursue  her  voyage,  cannot 
take  away  a  right  vested  in  the  assured  at  the  time  of  the  capture.  But  because 
he  cannot  recover  more  than  he  has  suffered,  he  must  abandon  what  may  be 
saved.  The  better  opinion  of  the  books  says,  "Sufficit  semel  extitisse  con- 
ditionem,  ad  beneticium  assecurati  de  amissione  navis,  etiam  quod  postea 
sequeretur  recuperatio :  nam  per  talem  recuperationem  non  poterit  praejudicari 
assecurato."  I  cannot  find  a  single  book,  ancient  or  modern,  which  does  not 
say,  "that  in  the  case  of  the  ship  being  taken,  the  assured  may  demand  as  for 
a  total  loss,  and  abandon."  And,  Avhat  proves  the  proposition  most  strongly 
is  that  by  the  general  law,  he  may  abandon  in  the  case  merely  of  an  arrest,  on 
an  embargo,  by  a  prince  not  an  enemy.  Positive  regulations  in  different  coun- 
tries have  a  precise  time  before  the  assured  should  be  at  liberty  to  abandon  in 
that  case.      The  fixing  a  precise  time  proves  the  general  principle. 

*No  capture  by  the  enemy,  though  condemned,  can  be  so  total  p  ^^g-,  -. 
a  loss  as  to  leave  no  possibility  of  a  recovery.     If  the  owner  him-  ^  J 

self  should  retake  at  any  time,  he  will  be  entitled :  and,  by  the  act  of  Parlia- 
ment, if  an  English  ship  retakes  at  any  time,  (before  condemnation  or  after) 
the  owner  is  entided  to  restitution  upon  stated  salvage.  This  chance  does  not 
suspend  die  demand  for  a  total  loss  upon  the  assurer,  but  justice  is  done  by 
putting  him  in  the  place  of  the  assured  in  case  of  a  recapture.  In  questions 
upon  policies,  the  nature  of  the  contract  as  an  indemnity,  and  nothing  else,  is 
always  liberally  considered.  There  might  be  circumstances  in  which  a  capture 
would  be  but  a  small  temporary  hindrance  to  the  voyage;  perhaps  none  at  all, 
as  if  a  ship  was  taken  and  in  a  day  or  two  escaped  entire  and  pursued  her 
vovage.  There  are  circumstances  under  which  it  would  be  deemed  an  average 
loss  :  if  a  ship  taken  is  immediately  ransomed  by  the  master  and  pursues  her 
voyage,  there  the  money  paid  is  an  average  loss.  And  in  all  cases  the  assured 
may  choose  "not  to  abandon." 

in  the  second  part  of  the  >■<•  Usages  and  Customs  of  the  Sea,'"  (a  French 
work  translated  into  English)  a  treatise  is  inserted  called,  "  Ze  Guidon," 
where,  after  mentioning  the  right  to  abandon  upon  a  capture,  he  adds,  "or  any 
other  such  disturbance  as  defeats  the  voyage,  or  makes  it  not  worth  while 
or  worth  the  freight  to  pursue  it.  We  are,  therefore,  clear  that  the  loss  was 
total  by  the  capture ;  and  the  right  which  the  owner  had  after  the  voyage  Avas 
defeated,  "to  obtain  restitution  of  the  ship  and  cargo,  paying  great  salvage  to 
the  recaptor,  might  be  abandoned  to  the  assurers,  after  she  was  brought  into 
Milford  Haven.'"     The  postea  to  the  plaintiff  in  both  causes. 


(a)  See  ante,  p.  27,  where  Lord  Mansfield's  judgment  is  also  given,  and  his  observa- 
tioas  on  the  different  cases  relating  to  the  subject. 


164  MEN-OF-WAR,  ENEMIES,   PIRATES,   ETC. 

From  the  above  full  report  of  this  case,  together  with  the  luminous  obser- 
vations of  Lord  Mansjidd^  in  delivering  the  judgment,  the  reader  will  liave 
gathered  a  considerable  knowledge  of  the  law  of  insurance,  as  applicable  to  the 
r  *9QS  1  ^^^^  of  capture.  It  will  be  necessary  to  pursue  the  subject  farther, 
L  J  *\vith  the  consideration  of  some  other  principles  which   on  this 

subject  have  been  setded. 

In  the  first  place,  it  is  not  lawful  to  insure  against  Brilish  capture,  and  such 
an  insurance  is  void.  This  is  settled  in  the  cases  of  lAibbocIc  v.  Potts,  (a) 
and  Glover  v.  Coivie.  (b) 

Secondly,  it  has  also  been  decided  in  the  case  of  Jierens  v.  Rucker^  (c)  that 
where  a  capture  has  been  made,  whether  legal  or  not,  the  assurers  are  liable 
for  the  charges  of  a  compromise  made  bona  fide  to  prevent  the  ship  being  con- 
demned as  a  prize. 

It  was  an  action  on  a  policy  of  insurance  on  a  Dutch  ship,  called  the  Tyd, 
and  its  cargo,  at  and  from  Saint  Euatutius  \oAmstcrdanu  warranted  a  Dutch 
ship,  and  the  goods  Dutch  property,  and  not  laden  in  any  French  port  in  the 
West  Indies.  The  cargo  was  worth  12,000/..  and  was  insured  at  a  premium 
of  fifteen  guineas  j;cr  cent..,  which  was  advanced  to  this  high  rate  on  account  of 
the  number  of  captures  made  by  the  English  of  neutral  vessels,  on  suspicion 
of  illicit  trade,  and  the  detention  of  those  vessels,  by  the  proceedings  in  the 
Courts  of  Admiralty.  The  defendant  underwrote  82/.  of  the  plaintifl"'s,  for  a 
premium  of  12/.  IS*.  3(/.  In  JIuij,  1758,  the  ship  was  at  Saint  Eustatius 
taking  in  her  cargo,  which  consisted  of  sugar  and  indigo,  and  other  French 
commodities,  which  were  put  on  board  her,  partly  out  of  barks  from  sea,  partly 
from  the  shore  of  the  island.  On  the  18th  of  June,  1758,  she  sailed  on  her 
voyage;  on  the  27th,  she  was  taken  by  an  English  privateer  and  carried  into 
Portsmouth.  On  the  1st  of  .^ugust^  the  sailors  were  examined  upon  the 
standing  interrogatories  prescribed  by  the  statute  of  29  Geo.  2,  c.  34,  and  the 
captain  entered  his  claim  in  the  Admiralty  Court.  In  October,  1758,  the 
claimants  were  cited  to  specify  what  part  of  the  goods  Avere  taken  from  the 
shore  of  Saint  Eustatius,  and  what  from  the  barks.  Citation  was  continued 
r  *299  1  ^'°"^  Court  to  Court  *till  February,  1759,  when  an  interlocutory 
^  -^  decree  was  pronounced  for  the  contumacy  of  the  claimants  in  not 

specifying,  and  that  therefore  the  goods  should  be  presumed  French  property. 
There  was  an  appeal  to  the  Lords  Commissioners  of  Prizes:  but  as  many 
causes  stood  before  it,  as  the  market  was  very  high,  and  as  the  cargo  was  in 
part  perishable,  the  agent  of  the  owners  agreed  widi  the  captors  to  give  them 
800/.  and  costs  to  obtain  the  reversal  of  the  sentence.  The  reversal  was  had 
by  consent,  and,  in  order  to  give  costs  to  the  captor,  it  was  decreed  by  consent, 
that  there  was  a  sufficient  cause  for  seizure ;  and  thereupon  costs  were  decreed 
to  the  captors,  and  restitution  of  the  cargo  to  the  owners  was  also  ordered. 
The  ship,  when  restored,  proceeded  to  Amsterdam:  and  after  her  arrival  there, 
the  Chamber  of  Insurances  in  that  citv  settled  the  average  of  the  plaintiff 
towards  the  loss  and  expenses  at  14/.' 3s.  8rf.,  occasioned  by  the  capture, 
detention,  and  litigation ;  and  for  this  sum  the  action  was  brought. 

Lord  Mansfield. — -'The  first  question  is,  whether  this  was  a  just  capture.' 
Both  sentences  are  out  of  the  case,  being  done  and  undone  by  consent.  The 
capture  was  certainly  unjust.  The  pretence  was,  that  part  of  this  cargo  was 
pnt  on  board  off  Saint  Eustatius,  out  of  barks  supposed  to  come  from  the 
French  islands,  and  not  loaded  immediately  from  the  shore.  This  is  now  a 
settled  point  by  the  Lords  of  Appeal,  to  be  the  same  thing  as  if  they  had  been 


(a)  7  East,  449. 

(o)  1  M.  &  S.  52,  and  see  ante,  at  the  commencement  of  this  section, 
(c)   1  Black.  313. 


MEN-OF-WAR,   ENEMIES,   PIRATES,   ETC.  165 

landed  on  the  Dutch  shore,  and  then  put  on  board  afterwards :  in  which  case 
there  is  no  colour  for  seizure.  The  rule  is,  that  if  a  neutral  ship  trade  to  a 
French  colony,  with  all  the  privileges  of  a  French  ship,  and  is  thus  adopted 
and  naturalized,  it  must  be  looked  upon  as  a  French  ship,  and  is  liable  to  be 
taken.  Not  so.  if  she  have  only  French  produce  on  board,  without  taking  it 
in  at  a  French  port;  for  it  may  be  purchased  of  neutrals. 

"The  second  question  is,  whether  the  owners  have  acted  bond  fide  and 
uprighdy.  as  men  acting  for  themselves,  and  upon  a  reasonable  footing;  so  as 
to  make  the  expenses  of  this  compromise  a  loss  to  be  borne  by  the  insurers. 
The  order  *of  the  Judge  of  the  Admiralty  to  specify  was  illegal,  ^  sqnn  -i 
contrary  to  the  marme  law  and  the  act  of  Parliament,  which  is  only  L  J 

declaratory  of  the  marine  law ;  because  if  they  had  specified,  it  could  be  of  no 
consequence,  according  to  the  rule  I  before  mentioned.  The  captors  were, 
however,  in  possession  of  a  sentence,  though  an  unjust  one :  and  a  Court  of 
Appeal  cannot  or  seldom  does,  upon  a  reversal,  give  costs  or  damages,  Avhich 
have  accrued  subsequent  to  the  original  sentence  :  for  these  damages  arise  from 
the  fault  of  the  Judge,  not  of  the  parties.  Under  all  these  circumstances, 
therefore,  the  owners  did  wisely  to  offer  a  compromise.  The  cargo  was  worth 
12,000/.;  the  appeal  was  hazardous;  the  delay  certain.  The  Dutch  deputy 
in  England  negociated  the  compromise  ;  the  Chamber  of  Commerce  at  Amster- 
dam ratified  it,  and  thought  it  reasonable.  Had  the  whole  sentence  been  totally 
reversed,  the  costs  must  have  sat  heavy  on  the  owners.  I  therefore  think  the 
insurers  liable  to  answer  this  average  loss,  which  was  submitted  to  in  order  to 
avoid  a  total  one."  The  jury  found  for  the  plaintiff,  agreeably  to  the  above 
direction,  (a) 

Thirdly :  It  was  formerly  a  common  practice  to  ransom  British  sliips  when 
taken  by  the  enemy,  by  delivering  to  the  captor  what  was  called  a  ransom  bill, 
which  secured  to  him  the  price  agreed  upon,  and  operated  as  a  bill  of  sale  to 
the  oriofinal  owners,  and  as  a  protection  to  the  ship  against  other  cruisers  of  the 
enemy  during  the  remainder  of  her  voyage.  A  hostage  was  likewise  delivered 
to  the  captor  to  secure  him  the  punctual  payment  of  the  stipulated  sum.  Actions 
at  common  law  were  formerly  maintained  upon  ransom  bills.  But  the  Court 
of  King's  Bench  at  length  decided  that  such  actions  could  not  be  maintained, 
as  an  alien  enemy  cannot  sue  for  any  right  claimed  to  be  acquired  by  him  in 
actual  war,  Anthon  v.  Fisher,  (b)  But  the  practice  of  ransoming  ships  cap- 
tured by  the  enemy  being  found  to  operate  more  to  the  *disadvan-  ^  „„„.  -, 
tage  than  the  benefit  of  this  country,  it  was  at  length  prohibited  L  -^ 

altogether  by  act  of  Parliament.  By  22  Geo.  3,  c.  25,  it  is  declared  unlawful 
for  any  of  his  Majesty's  subjects  to  ransom,  or  enter  into  any  contract  for  ran- 
soming any  ship  or  vessel  belonging  to  any  of  his  Majesty's  subjects,  or  any 
merchandises  or  goods  on  board  the  same,  which  shall  be  captured  by  the  sub- 
jects of  any  state  at  war  with  his  Majesty,  or  by  any  person  committing 
hostilities  against  his  Majesty's  subjects.  And,  by  the  2nd  section,  that  all 
contracts  and  agreements  entered  into,  and  all  bills,  notes,  and  other  securities, 
given  for  ransom  of  any  such  ship  or  goods  on  board  the  same,  contrary  to  the 
act,  shall  be  void  in  law,  and  of  no  effect  whatever :  and,  by  the  3rd  section, 
a  penalty  of  500/.,  with  costs,  is  given  to  the  informer  against  any  person  who 
enters  into  this  species  of  contract.  The  same  law  was  still  further  enforced 
by  occasional  acts  of  Parliament,  passed  during  the  war.  (o)     And  it  would, 

(a)  In  T5-son  v.  Gurney,  3  Term  Rep.  477,  this  case  was  quoted  without  contradiction; 
and  the  point,  in  support  of  which  it  was  adduced,  was  held  accordingly. 

(b)  3  Doug.  166. 

(a)  33  Geo.  3,  c.  66;  43  Geo.  3,  c.  160;  45  Geo,  3,  c.  72,  now  expired. 


166  MEN-OF-WAR,  ENEMIES,  PIRATES,   ETC. 

therefore,  follow  as  a  necessary  consequence,  that  no  money  paid  on  such 
account  could  be  recovered  from  the  underwriters. 

Upon  this  principle  the  following  decision  has  taken  place,  in  the  case  of 
Havelock  v.  Lockwood.  [b)  The  ship  Themis  was  insured  for  twelve  months, 
and  during  that  period  was  captured  and  carried  into  Bergen,  in  Norivay,  and 
there  condemned  by  the  French  consul.  After  this  sentence,  the  ship  was  put 
up  to  public  auction  at  Bergen.,  by  the  public  officer  of  the  Court  of  Denmark, 
havino-  been  previously  advertised,  and  was  re-purchased  by  the  agent  of  the 
plaintiff;  and  for  this  re-purchase  money  the  plaintiff  insisted,  (if  not  entitled  to 
recover  as  for  a  total  loss,)  he  was  at  all  events  entitled  to  a  verdict. 

The  Court,  after  hearing  two  arguments,  were  unanimously  of  opinion  that, 
as  the  sentence  of  the  French  consul  in  a  neutral  country,  was  contrary  to  the 
r  -Qn->  1  ^^^^  ^^  nations,  and  void,  *the  property  never  was  devested  out  of 
L  J  the  original  owner;  and  that,  therefore,  the  money  paid  for  the 

re-purchase  was  in  the  nature  of  a  ransom.  The  ransom  acts  are  remedial 
laws,  and  in  the  construction  of  such  acts  it  is  the  rule  to  extend  the  remedy  so 
as  to  meet  the  mischief,  and  the  liegislature  intended  to  prevent  such  a  transac- 
tion as  the  present  taking  place,  because  it  would  take  away  the  cliance  of  re-cap- 
ture. The  circumstances  of  this  being  done  by  an  agent,  at  an  auction,  and  on 
land,  were  deemed  immaterial,  the  acts  of  Parliament  not  having  described  at 
what  places,  or  in  what  form  a  ransom  is  prohibited;  but,  having  prohibited 
ransom  in  general  terms,  the  case  was  thouglit  to  come  within  the  mischiefs 
against  which  those  statutes  were  meant  to  guard. 

A  loss  is  properly  described  to  have  taken  place  "by  capture,"  when  that  is 
the  immediate  and  operative  cause  of  the  loss  of  the  thing  insured.  As  in  the 
case  of  Green  v.  Elmslie,  (a)  where  a  ship  was  driven,  by  stress  of  weather, 
upon  an  enemy's  coast,  and  there  captured,  the  loss  was  properly  treated  as  a 
loss  by  capture.  And  in  the  case  of  Arcangelo  v.  Thompson,  (h)  where  two 
causes  combine  together  in  occasioning  a  loss,  it  may  be  averred  in  the  declara- 
tion to  have  arisen  from  either :  as  where  a  ship  was  barratrously  delivered  into 
the  hands  of  the  enemy,  the  loss  may  I)e  alleged  to  have  happened  either  by 
barratry  or  by  capture.  But  an  averment  of  a  loss  by  capture  cannot  be  sus- 
tained if  the  ship  were  not  taken  '■'•jure  belli.''''  As  in  the  case  of  Mathie  v. 
Potts,  (r)  where  goods,  which  were  prohibited  by  the  Spanish  revenue  laws 
at  Campeachy,  were  put  on  board  launches  for  the  purpose  of  being  smuggled 
r  **iO'i  ~1  ^"  shore,  and  were  seized  by  the  Spanish  Govermnent,  the  loss 
L  J  *was  held  not  to  be  well  described  by  an  averment,  that  the  goods 

were  seized,  captured,  and  taken  in  a  forcible  and  hostile  manner,  by  certain 
persons,  enemies  of  our  lord  the  king,  to  the  plaintiffs  unknown. 

In  cIinrtfT-parties,  if  the  vessel  freighted  was  robbed  or  taken  by  pirates,  that 
was  held  to  be  a  loss  within  the  meaning  of  the  words  "perils  of  the  seas." 
And  the  same  rule  of  construction  prevails  as  to  policies  of  insurance.  («) 
And  Lord  MansfichJ,  in  Gosa  v.  JVithers,  {b)  says,  "A  capture  by  a  pirate 
(and  in  Spain,  Venice,  and  England,  the  goods  go  to  the  captor  of  the  pirate, 
against  the  owner :  as  there  can  be  no  condemnation  to  entitle  the  pirate,  or  a 
capture,  under  a  commission,  where  there  is  no  war)  does  not  change  the  pror 


(4)  8  T.  R.  268.  (a)  Pcake,  212,  ante,  p.  270. 

{!))  2  Camp.  620.  And  in  thn  case  of  BIyth  v.  Shoplioni,  it  was  held  that  a  count  on 
a  policy  of  insurance  allo!,'iin,'  a  loss  hy  "perils  of  the  sea,"  and  anotlicr  count  hy  '•barra- 
try" of  the  ni;iHtnr,  cannot  lie  pleaded  together.      9  M.  &  W.  703. 

(c)   .')  IJos.  cSc  Pull.  23,  ante,  J).  l.>2. 

(«)  2  Roll.  Ahr.  248,  pi.  10  Combcrbatch,  56. 

(6)  2  Burr.  694. 


MEN-OF-WAR,   ENEMIES,   PIRATES,   ETC.  167 

perty.  Yet,  as  between  the  assurer  and  assured,  they  are  just  upon  the  same 
ibotiiiir  as  captures  by  an  enemy." 

And  in  the  case  of  Seivell  v.  The  Royal  Exchana;e,  Assurance  Company  (c) 
it  was  lield,  ''that  tbe  owners  of  a  vessel  who,  by  performin<^  the  stipulations 
of  a  charter-party,  provoke  confiscation  by  the  illegal  and  piratical  act  of  a 
foreign  slate,  may  recover  against  the  assurers,  declaring  tlieir  loss  to  be  by 
forcible  seizure  and  capture  of  persons  unknown." 

The  underwriters  undertake,  likewise,  to  bear  the  depredations  of  rovers  and 
thieves. 

In  Mulyne^  (</)  it  is  said,  tliat,  if  there  be  thieves  on  ship-board  among  them- 
selves, the  master  of  the  ship  is  to  answer  for  that,  and  to  make  it  good :  so 
that  the  assurers  are  not  to  be  charged  with  any  such  loss,  for  he  supposes  the 
word  '"thieves"  to  mean  assailing  thieves^  for  so  he  terms  them;  and  their 
being  coupled  with  the  term  "rovers"  in  the  policy,  that,  as  Lord  Kenyan 
says  in  Ne.sbilt  v.  Lushington,  "noscitur  a  sociis,"  it  seems  pretty  clear  that 
Mdlyne  is  right.  It  is  also  apparent  that  a  statute  of  7  Geo.  2,  c.  15,  gives 
countenance  *to  this  idea,  by  the  preamble  to  which  it  appears  that,  p  *qo4  1 
previous  to  the  passing  of  that  act,  the  owners  of  the  ship  were  L  -' 

liable  to  the  proprietors  of  the  goods  for  embezzlement,  secreting,  or  making 
away  with,  of  the  goods,  by  the  master  or  mariners,  to  whatever  amount  the 
value  might  be.  [a) 

It  is  not,  however,  a  necessary  consequence  that,  because  the  owner  is  liable 
iu  such  a  case,  therefore  the  assurer  must  be  discharged,  especially  as  the 
uiulorwriter  undertakes,  by  the  terms  of  the  policy,  to  answer  for  the  barratry 
of  the  master  and  mariners. 

Jioccvs  is  of  opinion  that,  when  a  theft  is  committed  on  board  the  ship,  and 
some  goods  have  been  stolen,  then  the  insurers  are  not  bound,  because  the 
owner  of  the  goods,  as  much  as  in  him  lies,  is  obliged  to  take  care  of  them ; 
and  if  they  were  stolen  while  in  the  vessel,  this  cannot  be  called  an  accident, 
but  lias  happened  through  the  negligence  of  those  who  did  not  take  proper  care 
of  them.  He  adds,  that  the  master  or  owner  being  liable  is  an  additional 
reason,  because  the  master  of  the  ship  is  held  liable  for  thefts  committed  therein  : 
as,  by  receiving  the  goods  on  board,  he  enters  into  a  tacit  agreement  to  deliver 
them  safe  and  whole,  {b) 

Mr.  J.  Park,  in  his  Treatise,  (c)  (from  which  this  is  taken)  says  that  Itoc- 
cus's  reasoning  upon  this  subject  is  by  no  means  conclusive  as  to  English 
insurances,  on  account  of  the  express  terms  of  the  contract. 

The  underwriter,  however,  is,  of  course,  liable  for  a  robbery  of  the  goods 
from  without:  as  thieves  are  a  "peril"  expressly  insured  against,  Harford  v. 
Muynard.  (d) 

"11.  Having  considered  the  law  of  capture  by  the  enemy,  as  far  p  ^i^oo^  -i 
as  it  is  applicable  to  tlie  law  of  marine  insurances,  we  will  now  ^  -I 

proceed  to  consider  the  remaining  part  of  the  sentence,  whicli  is  the  head  of  the 
present  section,  and  wliicli  comprises,  by  the  express  contract  of  the  assurer, 


(r)  4  Taunt.  856. 

(d)   Malync,  c.  25.     Lex.  Merc.  Red.  4th  edit.  p.  295. 

(a)  By  a  subsequent  act,  26  Geo.  3,  c.  86,  the  owner's  responsibility  is  limited  to  the 
value  of  ship  and  freight  even  in  cases  of  external  robbery,  without  the  privity  of  the  mas- 
ters or  mariners,  and  by  the  second  section  owners  are  wholly  excmjitcd  from  any  loss 
occasioned  by  "fire."  And  by  53  Geo.  3,  c.  159,  this  limitation  of  the  responsibility  of 
shipowners  has  been  still  further  extended.  Wilson  v.  Dickson,  2  B.  &  A.  and  Abbott 
on  Ship.  6th  edit.  349. 

(6)   Roccus  de  Assecur.   Not.  42.  (c)  Park  Ins.  p.  36. 

(«/)  Before  Lord  IVIansfield  at  Guild.  Hil.  Vac.  1785.      Park  Ins.  36. 


168  MEN-OF-WAR,  ENEMIES,   PIRATES,  ETC. 

the  risk  "of  all  loss  and  damage  arising  to  the  assured  by  the  arrests,  restraints, 
and  detainments  of  all  kings,  princes,  and  people,  of  what  nation,  condition,  or 
quality  whatsoever." 

The  words  of  this  sentence  are  so  large  and  comprehensive,  that  they  can 
hardly  foil  to  include  every  case  which  by  possibility  can  come  under  the 
terms  of  it,  and  of  the  nature  of  the  risk  referred  to  by  it. 

The  learned  JRoccus  is  of  opinion,  "-ut  si  merces  captae  a  potestate,  seu 
judice  jiistitiam  administrante  in  illo  loco,  aut  a  populo,  aut  ab  alia  quacunque 
persona  per  vim,  absque  pretii  soUitione,  tenentur  assecuratores  solvere  a^stima- 
tionem  dominis  mercium,  facta  prius  per  dominos  mercium  cessione  ad  bene- 
iiciiim  assecnratorum  pro  recuperandis  illis  mercibus,  vel  pretio  ipsorum  a 
capientibus. "  (a) 

And  in  another  place  he  says,  "Regis  et  principis  factum  coimumeratur  inter 
casus  fortuitos :  ideo  si  rex  et  princeps  retineant  navem  oneratam  frumento  ex 
causa  penuria?,  quapropter  navis  non  potuerit  frumenta  asportare  ad  locum  desti- 
natum,  tenentur  assecuratores."  (/>) 

Mahjne  lays  the  law  down  "that  assurers  are  liable  for  all  losses  by  arrests, 
detainments,  &c.,  happening  both  in  time  of  war  and  in  peace,  committed  by 
the  public  authority  of  princes."  (c) 

And  Lord  Mansfield  said,  in  the  case  of  Goss  v.  Hither s,  [d)  "that  the 
assured  may  abandon  in  case  merely  of  an  arrest  or  embargo  by  a  prince,  not 
an  enemy  :  and,  consequently,  such  an  arrest  is  a  loss  within  the  meaning  of  the 
word  'detention.'  " 

r  *onp  -1  111  *'i6  case  of  Nesbitt  v.  Lushington,  (c)  the  question  arose 
^  -'  *what  the  word  "  people"  in  this  clause  of  the  policy  meant.     The 

declaration  claimed  a  loss  of  corn  occasioned  by  the  unlawful  arrest,  restraint, 
and  detention  of  people  to  the  plaintiffs  unknown.  The  facts  were,  that  the 
ship  being  forced  into  Ehj  Harbour^  in  Ireland^  and  a  great  scarcity  of  corn 
happening  to  be  there  at  tliat  time,  the  people  came  on  board  in  a  tumultuous 
manner,  took  the  government  of  the  vessel  from  the  captain  and  crew,  weighed 
her  anchor,  by  which  she  drove  upon  a  reef  of  rocks,  and  would  not  leave  her, 
till  they  had  compelled  the  captain  to  sell  almost  the  whole  of  the  corn  con- 
siderably below  its  invoice  price.  The  word  "people,"  it  was  contended  at 
the  IJar,  meant  individuals  of  a  nation  as  opposed  to  magistrates  or  rulers. 
Lord  Kcnyon  says,  "that  which  happened  in  this  case,  does  not  fall  within  the 
meaning  of  'arrests,  restraints,  and  detainments  of  kings,  princes,  and  people.' 
The  meaning  of  the  word  '  people'  may  be  discovered  here  by  the  accompany- 
ing words,  (noNcifirr  a  sodis\)  it  means  the  ruling  power  of  the  country." 

Mr.  .lusticc!  BuUer. — '"I  cannot  agree  with  the  construction  put  at  the  Bar 
upon  the  word  'people;'  it  means  the  supreme  power;  the  power  of  the 
country,  whatever  it  may  be.  This  appears  clear  from  another  part  of  the 
policy ;  for  where  tlie  underwriters  insure  against  the  wrongful  acts  of  indi- 
viduals, they  describe  them  by  the  names  of  'pirates,  rovers,  thieves,'  (a)  then, 
having  stated  all  the  individual  persons,  against  whose  acts  they  engage,  they 
mention  other  risks,  'those  occasioned  by  the  acts  of  kings,  princes,  and  peo- 
ple, of  what  nation,  condition,  or  quality  whatsoever.'  Those  words,  there- 
fore, must  apply  to  nations  in  their  collective  capacity." 

Secondly,  we  will  consider  what  is  called  an  embargo? 

An  embargo  is  an  arrest  laid  on  ships  or  merchandise  by  public  authority,  or 
a  prohibition  of  state  commonly  issued  to  prevent  foreign  ships  from  putting  to 


(a)  Roc.  dc  Asscc.  Not.  54.  (i)  lb.  Not.  65. 

(c)   Malynn,  110.  (</)   2  Burr.  696. 

(e)  4  T.  R.  783.  („)   See  ante,  p.  303. 


MEN"-OF-"\VAR,   ENEMIES,  PIRATES,  ETC.  169 

sea  in  time  of  war,  and  sometimes  also  to  exclude  them  from  entering  our 
ports,  (b) 

*This  term  has  also  a  more  extensive  signification,  for  sliips  are  r-  ^.qn-  -i 
frequently  detained  bv  a  prince  to  serve  him  in  an  expedition,  and  L  -^ 

for  this  end  have  their  loading  taken  out,  without  any  regard  to  the  colours  they 
bear,  or  the  princes  to  whose  subjects  tltey  belong.  The  legality  of  such 
measures  has  been  doubted  by  some,  but  it  is  certainly  conformably  to  the  law 
of  nations,  for  a  prince  in  distress  to  make  use  of  Avhatever  vessels  he  finds  in 
liis  ports,  that  may  contribute  to  the  success  of  his  enterprize.  [a) 

An  embargo  laid  on  shipping  in  the  ports  of  Great  Britain,  by  proclamation, 
in  time  of  war  is  strictly  legal,  and  will  be  equally  binding  as  an  act  of  Parlia- 
ment, because  a  proclamation  is  founded  on  a  prior  law,  viz  : — that  the  king 
mav  prohibit  any  of  his  subjects  from  leaving  the  realm. 

But  in  times  of  peace,  the  power  of  the  king  of  Great  Britain  to  lay  such 
restraints  is  doubtful :  and,  therefore,  Avhere  such  a  proclamation  issued  in  the 
year  17G6,  against  the  words  of  the  statute  then  in  force,  though  absolutely 
necessary  for  the  prevention  of  a  dearth  in  this  country,  it  was  thought  prudent 
to  procure  an  act  of  the  Legislature  to  indemnify  those  who  advised,  or  who 
acted  under  that  proclamation,  {b) 

That  well  informed  merchant,  Magens,  says,  "that  in  case  of  detention  by 
a  foreign  power,  which  in  time  of  peace  may  liave  seized  a  neutral  vessel  at 
sea,  and  carried  it  into  port  to  be  searched  for  an  enemy's  property,  all  the 
charges  consequent  thereon,  must  be  borne  by  the  underwriter '.  and  whatever 
costs  may  arise  from  an  improper  detention  must  always  fall  upon  him."  (c) 

And  in  the  case  of  Salouci  v.  Johnsoiu  {d)  which  was  an  insurance  on  the 
ship  Thetis,  a  neutral  ship ;  and  upon  the  trial  a  special  case  was  reserved  for 
the  opinion  of  the  Court,  consisting  of  JVilles.  Ashurst,  and  Buller,  Justices, 
in  tlie  al)sence  of  Lord  Mansfield,  stating  that  the  plaiiitifls  were  Tuscan  sub- 
jects, resident  at  Leghorn,  sole  owners  of  the  ship  "Thetis,  which  p  ^„„g  -. 
sailed  from  Leghorn,  and  was  captured  by  a  Spanish  ship  oft"  the  L  J 

coast  of  Barbary,  with  neutral  goods  on  board,  consigned  to  London.  She 
was  condemned  as  a  prize  in  the  Court  of  Vice  Admiralty  in  Spain,  which 
sentence  was  reversed:  but  uj^on  another  appeal  to  a  superior  Court,  the  latter 
sentence  was  also  reversed,  and  the  former  confirmed.  The  grounds  of  con- 
demnation were  two :  1st,  That  the  ship  Thetis  refused  to  be  searched,  and 
resisted  with  force,  having  fired  at  the  Spanish  ship.  2ndly,  That  she  had 
no  charter-party  on  board.  Tlie  captain  of  the  TJietis  answered  these  two 
grounds  :  1st,  That  he  resisted  and  fired,  because  the  Spaniard  hailed  him 
under  false  colours.  2ndly,  That  he  had  taken  the  goods  on  board  by  the 
piece,  and  had  not  freighted  his  ship  to  any  individual ;  in  which  case  a  mani- 
festo was  sufficient  without  a  charter-party.  The  sentence  of  the  last  Court  of 
Appeal,  although  it  condemns,  admits  the  neutrality,  for  it  states  the  vessel  to 
be  "a  Tuscan  ship."  The  last  ground  relative  to  the  charter-party  was  not 
insisted  upon.  Upon  tlie  other,  the  three  learned  Judges  above  mentioned  were 
of  opinion,  that  a  neutral  ship  is  not  obliged  to  stop  to  be  searched ;  {a)  that  the 
captain  had  not  been  guilty  of  barratry;  that  the  searcher  stops  a  neutral  ship 
at  his  peril ;  that  this  was  to  be  considered  as  a  case  of  improper  detention, 
and  consequendy  that  the  plaintiff  upon  this  policy  was  entided  to  recover. 


(6)  Lex.  Merc.  red.  4th  edit.  260. 

(a)  Grot,  de  Jure  Belli,  2,  cap.  2,  s.  10;   1  Black.  Com.  270. 

\b)  Geo.  3,  c.  7.      Parkins.  169.  (c)    1  Magens,  67. 

\d)  B.  R.  Hill.  25  Geo.  3.     Park  Ins.  169. 

(h)  This  opinion  of  the  learned  Judges  does  not  seem  to  be  well  founded :  post. 


170  MEN-OF-WAR,   ENEMIES,   PIRATES,   ETC. 

Ill  the  case  of  Green  v.  Vouna;,  (b)  which  was  an  action  upon  a  policy  of 
insurance :  the  ease  appeared  to  be,  that  the  assurer  agreed  to  insure  the  ship, 
from  her  arrival  at  in  Jamaica^  during  her  voyage  to  London:  and  an 

embargo  was  laid  upon  the  ship  by  the  government,  who  afterwards  seized  the 
ship,  converted  her  into  a  fire-ship,  and  offered  to  pay  the  owners.  The  ques- 
tion was,  whether  this  would  excuse  the  assurers?  Holl,  C.  J.,  seemed  to 
think  that  it  would  not,  and  that  this  Avas  within  the  words,  "detention  of 
r  i-'^no  ~l  *priiipes,"  &c.,  but  he  gave  no  absolute  opinion,  the  cause  having 
L  J  been  referred  to  three  of  the  jury. 

Upon  this  case,  Mr.  J.  Park,  in  his  Treatise,  («)  observes,  "that  the  very 
general  words  made  use  of  in  policies  go  to  support  the  idea  of  Lord  Holt,  and 
although,  till  lately,  there  was  no  case  where  this  point  was  expressly  consid- 
ered, yet  it  seems  to  have  been  taken  as  settled  in  may  cases  which  have  come 
before  the  ('ourt."  One  instance,  immediately  occurs  in  the  case,  which  was 
mentioned  in  a  previous  part  of  this  Treatise,  viz  :  the  case  of  Robertson  v. 
Ewer.  [U)  There  an  embargo  had  been  laid  on  all  shipping  at  Barbadoes,  and 
there  was  no  doubt  that  the  assurer  was  liable  to  any  loss  which  might  have 
been  sustained  by  such  detention,  if  the  provisions  and  wages  had  been  insured 
as  well  as  the  ship.  The  ship  was  safe,  and  the  Court  said  they  could  only 
look  to  the  subject  of  insurance. 

In  France  it  is  declared,  "that  if  any  ship  be  stopped  by  our  orders  in  any 
of  the  ports  of  our  kingdom  before  the  voyage  begun,  the  assured  shall  not  on 
account  of  this  detention,  abandon  or  cede  their  effects  to  the  assurers. "  (c) 

A  similar  regulation  is  to  be  found  in  BUboa,  namely,  "that  if  any  ship  or 
ships  insured  with  or  without  goods,  shall  be  detained  by  his  Majesty's  order 
in  the  ports  of  these  kingdoms  of  Spain,  before  the  commencement  of  the  voy- 
age she  is  bound  on,  it  shall  be  adjudged  that  no  cession  can  be  made  of  them, 
but  ratiier  the  insurance  ought  to  be  held  null."  (d) 

"If  these  ordinances,"  says  Mr.  Justice  Park,  (e)  "when  they  use  the 
Avords  'commencement  of  the  voyage,'  mean  commencement  of  the  risk  in- 
sured, they  agree  with  the  laws  of  England;  (/)  because  the  underwriter  can 
r  *310  -]  "^^•^^'  be  ^answerable  for  anything  happening  before  that  period: 
L  J  but  when  the  risk  insured  is  'at  and  from,'  if  the  ship  be  detained 

in  the  loading  port,  by  order  of  the  state,  before  her  departure  for  the  voyage, 
but  after  the  risk  commenced,  the  insurer  by  our  law  is  liable  for  the  damages 
occasioned  by  such  detention,  as  the  words  in  the  policy  do  in  themselves 
iin|)()rt  no  restriction  to  restraints  and  embargoes  by  foreign  or  hostile  powers 
only." 

'J'liis  question  came  on  in  the  case  of  Botch  v.  Edic,  (a)  for  consideration 
in  the  Court  of  King's  Bench ;  and  it  was  unanimously  decided  in  favour  of 
the  assured  after  two  arguments  at  the  Bar.  But  the  learned  Judges  desired  it 
not  to  be  considered  as  deciding  upon  the  effect  of  an  embargo  laid  on  by  our 
own  sovereign  upon  ships  loading  in  this  country.  The  question  came  before 
the  Court  upon  a  special  case  reserved  for  its  opinion,  upon  the  trial  of  an  action 
on  a  policy  of  insurance  on  tln-ee  shii)s,  .Adelaide.  Mele  and  Victor,  their 
stores,  boats  and  fishing  materials,  &c.  upon  two  of  them  at  and  from  L' Orient, 
and  upon  the  third,  at  and  from  and  after  her  arrival  at  L' Orient,  and  on  all  of 


{!))  2  Lord  Raynioml,  840;  2  Salk.  444.        {a)   Park  Ins.  171. 

{h)  Ante,  pp.  'JO,  94.  (c)   2  Magens,  176. 

(''')   Hi-  417.  (e)   Page  172. 

(/)  'i'lic  French  policies  on  the  ship  always  attach  only  from  tho  day  the  ship  sails, 
unl.ss  the  parties  vary  the  general  rule  hy  a  particular  agreement.  Sec  the  ordinances  in  2 
Magens,  168,  169.     Sec  Pothier's  Traite  du  Contrat  d' Assurance,  c.  1,  s.  2,  art.  2. 

(a)  6T.  R.  413. 


MEN-OF-WAR,  ENEMIES,   PIRATES,   ETC.  171 

Ihem,  "to  all  ports,  seas  and  places  whatsoever,  beyond  and  on  this  side  the 
capes  of  Good  Hope  and  Horn,  on  the  southern  whale  and  seal  fishery  and 
trade,  and  nntil  the  ships'  arrival  back  at  L' Orient.''  The  loss  is  stated  by 
the  declaration  to  have  happened  by  the  ships  and  their  stores  and  provisions 
being,  by  authority  of  certain  persons  exercising  the  powers  of  government  in 
France,  at  Port  Louis  with  respect  to  one.  and  at  L' Orient  with  respect  to  the 
two  others,  arrested  and  restrained  from  farther  prosecuting  their  voyages,  and 
that  thev  had  thence  hitherto  been  prevented  and  restrained  therefrom  under  and 
by  virture  of  such  restraint.  The  case  stated  that  the  ship  .Adelaide  sailed 
from  the  port  of  L' Orient  on  the  voyage  insured,  but  was  obliged  to  put  back 
by  stress  of  weather  into  Port  Louis:  and  whilst  she  lay  there,  and  the  ships 
.^dele  and  Victor  *were  preparing  for  the  voyages  in  tlie  policies  r  *32  ^  -i 
mentioned,  and  before  the  necessary  passports  and  clearances  could  L  J 

be  obtained,  on  tlie  5th  February.  1793.  an  embargo  was  laid  on  all  vessels 
in  those  ports.  That  the  Adelaide  was  brought  back  to  LJ  Orient,  and  the 
perishable  stores  of  all  the  three  sliips  sold;  and  the  said  three  vessels  with 
the  rest  of  the  stores  now  remain  at  />'  Orient,  under  tlie  embargo,  wliich  has 
continued  ever  since  on  all  ships  destined  on  long  voyages  :  and  none  have  since 
been  permilted  to  sail,  except  those  in  government  service  or  upon  sliort  coast- 
ing voyages.  The  Adele  and  r7c/or  had  entered  outwards  upon  tlie  voyages 
insured,  when  tlie  embargo  came?  and  that  alone  prevented  the  ships  from 
sailing.  Notice  of  abandonment  was  given  to  the  underwriters  on  the  27di 
February,  1793.  and  a  total  loss  claimed ;  and  the  like  notice  and  claim  were 
repeated  in  August,  1793. 

Lord  Kenyan. — "I  have  looked  into  all  the  cases  which  have  been  cited, 
and  I  have  also  considered  the  passages  collected  from  foreign  writers,  and  the 
most  respectable  of  them  seem  to  me  to  coincide  with  the  construction  which 
an  English  court  of  justice  would  put  upon  such  an  instrument  as  the  present. 
This  plaintiff  is  under  no  disability  to  sue,  and  the  defendant  has  entered  into 
an  engagement  to  indemnify  him  against  arrests,  restraints,  and  detainments  of 
all  kings,  princes,  and  people,  of  what  nation,  condition,  or  quaUty  soever. 
By  this  peril,  the  ship  has  been  detained  near  three  years,  and  the  voyage  is 
defeated :  but  the  plaintiff  is  to  be  told  this  is  not  a  loss  within  the  policy.  No 
common  man  reading  the  words  of  the  policy  could  doubt  upon  the  question : 
and  it  is  by  artificial  reasoning  only,  collected  by  great  reading  upon  foreign 
authors,  that  his  claim  can  be  repelled.  But  in  truth,  when  examined,  the 
research  turns  out  to  be  all  one  way,  and  that  is  in  lavour  of  the  plaintifi". 
Roccus,  Le  Guidon,  Green  v.  Young,  from  Lord  Raymond,  are  all  one  way : 
and  although  Lord  Holt  is  said  not  to  have  given  an  absolute  opinion,  every- 
thing that  fell  in  judgment  from  that  great  man  is  deserving  of  the  liighest 
attention.  *Lord  Mansfield,  too  has  given  an  opinion  upon  the  ^  ^^^2  "] 
very  point;  (a)  and  when  to  this  current  of  authorities  we  add  the  L 
words  of  the  policy  itself,  it  is  perfecdy  clear.  Suppose  war  had  been  de- 
clared, and  the  ship  had  been  detained  in  port  as  a  prize,  could  there  have  been 
a  doubt.''  and  I  can  see  no  difference  between  the  cases." 

The  other  Judges  delivered  their  opinions  seriatim,  concurring  unanimously 
with  his  Lordship:  and  there  was  judgment  for  the  plaintiff'. 

•'In  deciding  the  above  case,"  says"  Mr.  J.  Park,  at  p.  174,  of  his  Trea- 
tise, "the  learned  Judges  expressly  declined  giving  an  opinion  upon  the  effect 
of  an  embargo  laid  by  the  government  of  this  country  upon  a  ship  insured 
here.  The  case  of  Green  v.  Young,  above  stated,  was  indeed  an  embargo  by 
the  British  governmenu     The  very  point  arose,  and  came  on  for  argument  upon 


(a)  2  Burr.  696,  and  ante. 


172  MEN-OF-WAR,   ENEMIES,  PIRATES,   ETC. 

a  special  case  in  a  cause  of  Bichoff  v.  Agur.  {h)  But  it  not  bein<T  stated  whether 
the  abandonment  was  made  in  a  reasonable  time,  and  the  Court  inclining  to 
think  the  abandonment  sliould  be  in  the  first  instance,  they  sent  the  case  back 
for  the  jury  to  find  that  fact:  and  upon  the  second  trial  the  jury,  havin<r  found 
that  the  abandonment  was  not  made  in  due  time,  gave  a  general  verdict  for  the 
defendant;  and  the  main  question  respecting  the  embargo  was  not  decided. 
But  during  the  late  war  in  Europe,  it  became  necessary  for  the  Courts  to  decide 
this  question;  for  in  Toutcng  v.  Hubbard,  (c)  where  the  point  arose  upon  a 
charter-party,  Lord  Alvanhu,  referring  to  the  above  case  of  Bichnffw  Agar, 
declared  it  to  be  the  opinion  of  the  whole  Court,  that  a  British  merchant  is 
not  liable  to  answer  for  any  damages  which  the  owner  of  a  foreign  vessel  may 
sustain  from  an  embargo  laid  by  the  Britiah  government  on  foreign  ships,  in 
the  nature  of  reprisals  and  partial  hostility.  And  his  Lordship  goes  on  to 
declare  it  to  be  die  opinion  of  himself  and  his  brethren,  that  an  insurance  for 
r  *'^1'^  "1  ^^^^  benefit  of  a  ^foreigner,  against  the  effects  of  such  an  embargo 
L  J  as  that  in  question,  whicli  was  an  embargo  by  the  British  govern- 

ment upon  all  Swedish  vessels,  would  be  illegal.  And  a  distinction  was  taken 
between  such  a  case  and  diat  of  Green  v.  Young,  (a)  which  was  a  question 
between  two  British  subjects." 

And  in  a  case  of  Page  v.  Thompson,  (b)  at  Nisi  Prius,  before  Lord  Ellen- 
borough,  his  Lordship  was  of  opinion,  where  the  assured  was  a  subject  of  the 
country,  he  might  recover  against  a  British  underwriter  for  the  loss  sustained 
by  the  detention  of  the  British  government,  that  being  totally  difl^erent  from 
the  case  of  a  foreign  assured;  for  amongst  our  own  subjects,  whether  the  plain- 
tiff" or  defendant  sustain  the  loss,  it  cannot  prejudice  the  general  interest  of  the 
country. 

Subsequently,  however,  this  question  was  decided  by  the  Court  of  King's 
Bench,  in  the  case  of  Conway  v.  Gray,  (c)  upon  the  principle,  that  every  man 
is  a  party  to  the  public  authoritative  acts  of  his  own  government :  and  on 
that  account  is  as  much  incapacitated  from  making  tlie  consequences  of  an  act 
of  liis  own  state  the  foundation  of  a  claim  to  indemnity  upon  a  British  subject 
in  a  British  Court  of  justice,  as  he  would  be  if  such  act  had  been  done  imme- 
diately and  individually  by  such  foreign  subject  himself.  Lord  Ellenborough, 
in  delivering  this  judgment,  founded  himself  chiefly  on  the  doctrine  contained 
in  the  case  of  Touteng  v.  Hubbard,  {d)  After  quoting  that  case,  his  Lord- 
ship said,  wliere  an  embargo  is  laid  on,  it  has  virtually  the  concurrence  and 
consent  of  cdl  the  subjects  of  the  country,  and,  amongst  the  rest,  the  concur- 
rence and  consent  of  the  assured;  the 'assured,  therefore,  have  joined  in  a 
resolution,  that  the  ship  shall  not  be  allowed  to  sail,  but  shall  remain  in  port; 
f  *314  1  ^""^  ^^  i^  possible  for  them  afterwards  to  make  their  not  *sailinor  the 
J  foundation  of  an  action.?  Where  the  insured  and  insurer  are"'  the 
subjects  of  the  same  state,  the  case  will  stand  upon  very  diff'erent  grounds  of 
consideration,  (a) 

So  where,  in  tlie  case  of  Campbell  v.  Innes,  (b)  a  policy  was  effected  on  a 
ship  from  London  to  America,  against  all  risks,  American  capture  or  seizure 
included;  at  the  trial  before  Abbott,  C.  J.,  it  appeared  that  the  ship  and  goods 


(I))  In  East.  Term,  1797.  (c)  3  Bos.  &  Pull.  291. 

(«)   Ante,  308. 
_    (i)  Sittings  after  Hil.  1804,  at  Guildhall.     The  same  point  was  ruled  by  his  Lordship 
in  Visger  V.  Prcscott,  with  respect  to  neutral  property.      5  Esp.   184. 

(c)    10  East,  .536.  (J)   «j  Bos.  «&  Pull.  291 

(a)  In  Simeon  v.  Bazett,  2  M.  «&  S.  94,  it  was  held  that  the  assured  may  recover  a  loss 
occasioned  by  the  act  of  his  own  government,  if  the  underwriters  knew  they  were  insuring 
agamst  such  acts.  (i)  4  B.  &  A.  423. 


MEN-OF-WAR,  ENEMIES,  PIRATES,   ETC.  173 

in  question  belonired  to  Messrs.  Levy  and  Gomez,  who  were  American  sub- 
jects 5  the  ship  sailed  on  her  voyage  laden  with  British  goods,  and  on  her 
arrival  in  Virginia  she  was  seized  l)y  the  collector  of  the  customs,  and  pro- 
secuted by  the  government  for  the  breach  of  the  non-importation  act.  The 
assured  abandoned  to  tlie  underwriter.  It  appeared  also,  that  war  was  declared 
by  the  American  government  before  the  ship  sailed  from  England,  but  that 
fact  was  not  known  in  England  till  after  her  departure.  Abbott,  C.  J.,  was 
of  opinion  that  as  the  ship  was  seized  by  the  American  government,  on  account 
of  the  war  with  America,  and  as  the  assured  were  American  subjects,  which 
circumstance  was  not  stated  on  the  face  of  the  policy,  and  did  not  appear  to  be 
known  to  the  underwriter  when  he  subscribed  the  policy,  the  plaintitfs  were 
not  entitled  to  recover.  Upon  a  motion  for  a  new  trial,  Abbott,  C.  J.,  said, 
"In  this  case  the  policy  did  not  show  that  the  property  belonged  to  American 
subjects,  nor  did  it  appear  at  the  trial  that  the  underwriter  was  acquainted  with 
the  fact.  Now  an  American  subject  to  whom  a  ship  and  goods  are  consigned 
in  America,  if  he  knows  he  is  insured  against  a  loss  of  this  description,  may 
not  onlv  omit  to  take  proper  means  for  preventing  this  loss,  but  may  possibly 
facilitate  it  by  giving  information  to  his  own  government  upon  the  subject.  I 
think  that  that  is  a  risk  which  tlie  underwriter  ought  to  know  before  he  sub- 
scribes the  policy." 

If  a  ship  sad  for  a  port,  after  a  notification  of  a  blockade,  within  p    ^g^g     -. 
*the  knowledge  of  the  assured,  or  the  master  of  the  ship,  the  voy-  ^ 
age  would  be  illegal  and  the  insurance  void,  and  the  act  of  sailing  under  such 
cn-cumstances,  constitutes  the  offence,  it  being  an  attempt  to  break  a  blockaded 
port.      But  although,  liy  the  law  of  nations,  the  blockading  country  may  be 
allowed  to  consider  its  notification  of  a  blockade  as  notice  thereof  to  all  the 
subjects  of  the  nation  to  which  the  notification  had  been  made,  for  it  cannot 
be  expected  that  the  blockading  nation  should  be  able  or  required  to  prove 
actual  knowledge  in  the  master  of  every  vessel  of  the  other  country,  yet  such 
a  rule,  (diough  even  on  the  questions  of  the  right  of  capture  between  the  subjects 
of  different  slates,  it  appears  to  be  open  to  some  quaUfication  and  relaxation  for 
the  furtherance  of  justice  and  the  benefit  of  commerce,  as,  for  instance,  where 
ships  have  been  allowed  to  clear  out  conditionally  for  the  blockaded  port  on 
the  supposition  that  before  the  arrival,  a  relaxation  may  have  taken  place.)  (a) 
it  has  been  held,  cannot  be  applied  with  the  same  strictness  to  the  contract  of 
insurance,  but  that  knowledge  of  the  fact  must  be,  in  general,  proved  in  the 
assured.     This  rule  was  laid  down  by  the  Court  of  King's  Bench,  in  the  case 
of  Harratt  v.  Wise,  [b)  r-  i 

It  was  an  action  on  a  policy  of  assurance  on  goods  "at  and  from  Liverpool 
to  Buenos  Ayres."  It  appeared  that  the  vessel  sailed  from  Liverpool  on  the 
4th  of  February,  1826,  and  having  met  with  bad  weather,  and  sustained  injury, 
put  into  Lock'indale,  one  of  the  western  islands  of  Scotland,  on  the  19th  of 
February,  to  repair  the  damage,  and  saUed  thence  on  the  12th  of  March;  it 
also  appeared  that  some  of  the  crew  having  deserted  at  Lockindale,  the  master 
went  to  Greenock  to  procure  some  other  men  and  was  absent  five  days.  The 
ship  arrived  off  Monte  Video  in  May,  and  was  there  taken  by  the  squadron 
stationed  for  the  blockade  of  Buenos  Ayres,  and  carried  mto  Rio  Janeiro, 
where  the  cargo  *was  taken  out  and  put  into  government  stores.  ^  ..g^g  -j 
Notice  of  abandonment  was  given  and  refused.  It  was  proved 
that  the  blockade  of  Buenos  Ayres  was  notified  in  the  London  Gazette,  on 

(a)  See  tlie  cases  of  the  Ncptunus,  2  Rob.  A.  R.  110,  and  of  the  Adelaide,  2  Rob.  A. 
R.  112.  (n).     The  Shepherdess,  5  Rob.  A.  R.  262. 
(6)  9  B.  &  C.  712. 


174  MEN-OF-WAR,   ENEMIES,   PIRATES,   ETC. 

the  ISth  of  Febntary,  and  that  the  insurance  was  made  on  the  22nd  of  that 
month.  The  captain  was  not  examined.  The  mate  denied  any  knowledge  by 
himself  and,  as  far  as  he  knew,  by  the  captain,  of  the  existing  blockade,  till 
the  ship  came  up  to  the  blockading  squadron  by  night.  The  captain,  on  ob- 
serving a  number  of  ships  together,  dropped  anchor  and  waited  till  daylight  ibr 
further  information,  when  the  ship  was  seized.  liOrd  Tenferden  left  it  to  the 
jury  as  a  question  of  fact,  whether  the  master  was  informed  of  the  blockade 
before  he  sailed  from  Lockindule.  The  jury  found  he  was  not,  and  the  plain- 
tiff' had  a  verdict.  A  rule  nisi  was  obtained  for  a  new  trial,  on  the  ground  that 
the  voyage  being  to  a  blockaded  port  was  illegal,  and  that  the  notice  of  the 
blockade  in  the  Gazette  was  notice  to  all  the  king's  subjects.  The  judgment 
oi^  the  Court,  after  taking  time  to  consider,  was  delivered  by  Lord  Tenterdcn^ 
C.  J. — ^'At  the  trial  it  was  contended  on  the  behalf  of  the  defendant,  and 
again  on  motion  for  a  new  trial,  that  the  voyage,  being  to  a  blockaded  port  was 
illegal,  and  the  policy  void.  It  was  further  contended,  that  as  the  master  was 
at  IjQckhidale,  and  Greenock  after  the  time  when  the  intelligence  of  the  notifi- 
cation of  the  blockade  might  have  arrived  and  must  be  supposed  to  have  arrived 
at  those  places,  the  policy  was  avoided  by  the  attempt  to  break  the  blockade. 
We  think  it  cannot  be  said  that  this  voyage  was  illegal  in  its  commencement, 
because  the  voyage  began  by  the  ship's  departure  from  Liverpool,  which  was 
before  the  publication  of  the  Gazette.  And  although  the  blockading  nation 
may,  by  the  law  of  nations,  be  allowed  to  consider  its  notification  of  a  blockade, 
as  notice  thereof  to  all  the  subjects  of  the  nation  to  which  the  notification  has 
been  given,  for  it  cannot  be  expected  that  the  blockading  nation  should  be  able 
or  required  to  prove  actual  knowledge  in  the  master  of  every  vessel  of  the  other 
p  :^oi7  -|  country,  yet  such  a  rule  allowing  it  to  *prevail  to  the  supposed 
'-  -^  extent  (though  it  appears  probably  to  be  open  to  some  qualifications 

and  relaxation  for  the  furtherance  of  justice  and  the  benefit  of  commerce,)  can- 
not, in  our  opinion,  be  applied  to  the  case  of  insurance.  And  if  the  possibility, 
or  even  probability  of  actual  knowledge,  should  be  considered  as  legal  proof  of 
the  fact  of  actual  knowledge,  as  n  prefsitmptio  juris  et  dejure,  the  presumption 
might,  in  some  cases,  be  contrary  to  the  fact,  and  such  a  rule  might  work  injus- 
tice. We,  therefore,  think  that  such  a  rule  cannot  be  established  as  a  rule  of 
insurance  law,  but  diat  knowledge,  like  other  matters,  must  become  a  question 
of  fa(;t  for  the  decision  and  judgment  of  a  jury.  The  probability  of  actual 
knowledge,  upon  consideration  of  time,  place,  the  opportunities  of  testimony, 
and  other  circumstances,  may,  in  some  instances,  be  so  strong  and  cogent  as  to 
cast  the  proof  of  ignorance  on  the  oUier  side  in  the  opinion  of  the  jury,  and 
in  the  absence  of  such  proof  of  ignorance,  to  lead  them  to  infer  knowledge,- 
f)ut  still  we  thiidi  the  inference  properly  belongs  to  them.  In  the  case  now 
before  tiie  Court,  if  the  jury  had  drawn  the  inference,  we  are  not  prepared  to 
say  they  would  have  done  wrong,  neither  can  we  say  that  they  did  wrong  in 
declining  to  draw  that  inference ;  and,  therefore,  we  cannot  set  aside  their  ver- 
dict, and  the  rule  for  a  new  trial  must  be  discharged. 

So  in  anotlicr  case  of  Naylor  and  others  \\  Taylor,  («)  on  a  policy  of 
insurance,  dated  6th  of  March,  1826,  on  goods,  by 'the  ship  Monarch,' ''at 
and  for  Liverpool  to  any  [xjrt  or  place  in  the  river  Plata,  with  liberty,  in  the 
event  of  a  blockade;  or  being  ordered  off  the  river  Plata,  to  proceed  to  any 
other  port,  and  there  wait  or  discharge."  The  loss  was  averred  to  have  been 
by  capture.  At  the  trial  before  Lord  Tcnterden,  C.  J.,  it  appeared  that  the 
ship  sailed  from  Liverpool,  on  the  11th  of  March,  1826,  and  was  proceeding 
up  the  river  Plata  to  Buenos  Jlyrcs,  when  she  met  with  a  Brazilian  frigate! 


(«)  9  B.  &  C.  718. 


MEX-OF-WAR,   ENEMIES,   PIRATES,   ETC.  175 

below  Monte  J'ldeo,  was  detained,  and  sent  mio  Monte  *  Video,  r- 
and,  after  remainino;  there  some  time,  was  sent  into  Rio  de  Janeiro  L  '  "  J 
for  adjudication.  On  her  way  there,  her  master  and  crew  rescued  the  vessel 
Irom  the  persons  put  on  board  by  the  fri-^ate,  and  brought  her  back  to  Liver- 
pool. Notice  of  abandonment  was  given  but  not  accepted.  The  notification 
of  the  blockade  of  the  ports  in  the  river  Plato,  belonging  to  the  government  of 
Buenos  Ay  res,  by  the  Emperor  of  Brazil,  was  published  in  the  London 
Gazette  of  the  18th  of  Febntary,  1826.  It  was  contended,  on  behalf  of  the 
defendant,  that  the  voyage  being  to  a  blockaded  port,  after  notification  of  the 
blockade,  was  illegal,  {a)  Lord  Tenterden  left  it  to  the  jury  to  say  whether 
the  master  intended  to  violate  the  blockade.  The  jury  found  that  they  were 
not  satisfied  that  the  master  intended  to  violate  the  blockade.  And  the  plaintifT 
had  a  verdict,  witli  liberty  to  move  tor  a  new  trial  in  the  event  that  the  voyao-e 
was  illegal. 

After  argument  at  the  Bar,  the  judgment  of  the  Court,  which  took  time  to 
consider,  was  delivered  by  Lord  Tenterden,  C.  J. — ''On  the  motion  the  cases 
of  the  Xeptunus,  and  of  l]\e  Adelaide,  and  of  the  Shepherdess,  (b)  were  cited 
for  the  defendants,  and  it  was  contended  tliat  this  was  an  illegal  voyage,  beino- 
to  a  blockaded  port  after  the  notification  of  the  blockade.  On  showing  cause, 
it  was  further  contended,  on  behalf  of  the  defendant,  that  admitting  there  was 
no  intention  to  violate  the  blockade,  the  master  should  have  wailed  for  adjudi- 
cation, and  that  the  rescue  of  the  ship  was  an  act  contrary  to  the  law  of  nations, 
and  discharged  the  policy  :  so  that  the  return  to  Liverpool,  instead  of  going  to 
some  other  port  to  wait  or  discharge,  according  to  the  liberty  in  the  pohcy,  dis- 
charged the  policy.  We  think  there  is  no  ground  for  sayinsf,  that  this  voyage, 
as  insured,  was  illegal  in  its  commencement:  indeed,  according  to  the  opinion 
of  Lord  Stoivell,  in  the  case  of  the  Shepherdess,  (c)  the  vessel  might  have 
sailed  for  Buenos  Ayres.  without  contraveninor  the  law  *of  nations,  p 
provided  it  was  a  part  of  the  original  intention  to  inquire  as  to  the  L  oi^  ] 
continuance  of  the  blockade  at  some  port  of  the  blockading  country :  and  in 
this  case  inquiry  might  have  been  made  at  Monte  Video,  or  of  any  of  the  Bra- 
zilian ships  met  in  the  river  Plata,  and  does  not  indicate  any  intention  to 
violate  the  blockade.  It  is  unnecessary  to  dehver  any  opinion  respecting  the 
rescue,  or  of  the  return  to  Liverpool.  The  late  cases  show,  that  a  mere  loss 
of  the  adventure  by  retardation  of  the  voyage,  without  loss  of  tlie  thing  insured, 
either  by  its  being  actually  taken  from  the  ship  or  spoiled,  does  not  constitute  a 
total  loss  under  a  policy  of  insurance,  unless  by  the  aid  and  effect  of  abandon- 
ment." (a) 

The  Court  also  held,  in  the  above  case  of  Conway  v.  Gray,  (b)  that,  where 
a  policy  is  made  on  behalf  of  the  consignor,  and  the  conduct  of  the  consigrnor 
or  of  the  state  to  which  he  belongs,  has  taken  away  from  him  the  right  of 
enforcing  it  directly  and  effectually  for  his  own  benefit,  the  consignee  is  not  at 
liberty  to  apply  it  to  his  interest,  and  enforce  payment,  as  though  it  had  been 
made  on  his  account.  The  Court  did  not  mean  to  say  that  a  consignee  may 
not  insure :  they  only  meant,  as  Lord  Ellenborough  declared,  that  he  was  so 
far  identified  in  interest  and  right  with  his  consignor  as  not  to  be  able  to  apply 
with  efTect  to  his  own  interest,  which  is  derived  from  the  consignor,  an  insu- 
rance which  was  made  in  order  to  cover  the  interest  of  the  consignor,  but  w  hich, 
upon  the  principle  already  stated,  cannot  be  available  for  that  purpose,  (c) 


(a)  There  was  another  point  on  the  question  of  abandonment,  which  was  referred  to  in 
the  section  on  that  subject,  see  post. 

(b)  Before  referred  to,  p.  315.  (c)  5  Rob.  A.  R.  262. 
(a)  See  as  to  this  ^oini,  post.                           (6)   10  East,  536. 

(c)  Wolff  V.  Homcastle,  1  B.  &  P.  316,  ante,  p.  4. 

Vol.  VIL— N 


176  MEN-OF-WAR,  ENEMIES,    i'lRATES,   ETC. 

However,  in  the  case  of  Usparicha  v.  Noble,  (d)  it  was  held  that  an  alien 
enemy,  in  respect  of  his  birth,  domiciled  in  this  country,  mijrlit  protect  by 
insurance  a  shipment  licensed  by  the  Crown,  to  the  enemy's  country. 

The  facts  of  the  case,   in  which  this  point  was  held,  were,   that  a  native 
Spaniard,  domiciled  in  England  in  time  of  war  betAveen  the  countries,  had 
^  been  licensed  by  the  kinp:  to  ship  "ffoods  in  a  neutral  vessel  from 

L  '^^^  J  Foole  to  Bilboa  or  S'nnfander.  The  vessel,  in  the  course  of  her 
voyage,  was  captured  by  a  French  privateer,  {France  being  a  co-belligerant  with 
Spaili,  and  both  nations  having  issued  similar  decrees  against  British  com- 
merce) and  condemned  by  a  French  constdar  court,  then  sitting  in  a  port  of 
Spain.  The  Court  of  King's  Bench  held  that  they  could,  consistently  with 
their  decision  in  Conway  v.  Gray,  determine  this  case  in  favour  of  the  assured, 
whether  for  his  own  benefit  or  of  his  correspondent's,  though  residing  in  the 
enemy's  country;  for  the  domiciled  Spaniard  was  especially  licensed  by  his 
Majesty,  for  the  purpose  of  the  very  commerce  which  it  was  the  object  of  the 
policy  declared  upon  to  insure. 

Lord  EUcnboroKgh  said, — "The  case  of  Wells  v.  Williams  (a)  establishes 
that  a  plaintifT,  an  alien  enemy  in  respect  of  the  place  of  his  birth,  may,  under 
similar  circumstances  of  domicile,  be  allowed  to  sue  in  our  Courts.  The  legal 
result  of  the  license  granted  in  this  case  is,  tliat  not  only  the  plaintiff,  the  per- 
son licensed,  may  sue  in  respect  of  such  licensed  commerce  in  our  Courts  of 
Law,  but  that  the  commerce  itself  is  to  be  regarded  as  legalized  for  all  purposes 
of  its  due  and  effectual  prosecution.  To  hold  otherwise  would  be  to  maintain 
a  proposition  repugnant  to  national  good  faith  and  the  honour  of  the  Crown. 
The  Crown  may  exempt  any  persons  and  any  branch  of  commerce,  in  its  dis- 
cretion, from  the  disabilities  and  forfeitures  arising  out  of  a  state  of  war;  and 
its  license  for  such  purpose  ought  to  receive  the  most  liberal  construction.  To 
say  that  the  plaintiff  might  export  the  goods  specified  in  the  license  from  Great 
Britain  to  an  enemy's  country  for  the  benefit  of  himself  or  others,  (and  the 
license  contains  no  restriction  in  this  particular)  and  yet  to  hold,  diat  where  he 
has  done  so  he  could  not  insure,  or  having  insured,  could  not  recover  his  loss, 
either  on  account  of  his  original  character  of  a  native  Spaniard,  or  on  account 
r  *'i21  1  °^  ^^^^  places  to  which,  or  of  the  persons  to  whom  the  goods  *were 
L  J  destined,  woidd  be  to  convert  the  license  itself  into  an  instrument 

of  fraud  and  deception.  The  Crown,  in  licensing  the  end,  impliedly  licenses 
all  the  ordinary  legitimate  means  of  attaining  that  end.  For  adequate  purposes 
of  state  policy  and  public  advantage,  the  Crown,  it  must  be  presumed,  has 
been  induced,  in  this  instance,  to  license  a  description  of  trading  with  an  ene- 
my's country,  which  would  otherwise  unquestionably  be  illegal.  Whatever 
commerce  of  this  sort  the  Crown  has  thought  fit  to  permit,  (which,  in  respect 
of  its  prerogatives  of  peace  and  war,  the  Crown  is  by  its  sole  authority  com- 
petent to  prohibit  or  permit)  must  be  regarded  by  all  the  subjects  of  the'realm, 
and  by  the  Courts  of  Law,  when  any  question  relative  to  it  comes  before  them, 
as  legal,  with  all  the  consequences  of  its  being  legal :  one  of  which  consequences 
is,  a  right  to  contract  with  other  subjects  of  the  country  for  the  indemnity  and 
protection  of  such  property  in  the  course  of  its  conveyance  to  its  licensed  place 
of  destination,  though  an  enemy's  country,  and  for  the  purpose  (as  it  probably 
will  be  in  most  cases)  of  being  there  delivered  to  an  alien  enemy,  as  consignee 
or  purchaser."  His  Lordship  then  applied  these  very  satisfectory  principles 
to  the  case  at  the  Bar,  and  then  proceeded  : — "For  the  purpose  of  this  licensed 
act  of  trading,  (but  to  that  extent  only)  the  person  licensed  is  to  be  regarded  as 
virtually  an  adopted  subject  of  the  Crown  of  Great  Britain:  his  trading,  as 


(d)   13  East,  332.  (a)   1  Lord  Raym.  282. 


BARRATRY  OF  THE  MASTBR  OR  MARINERS.  177 

far  as  the  disabilitifs  arising  out  of  a  state  of  war  are  concerned,  is  British 
trading :  and  of  course  any  argument  to  be  drawn  from  a  virtual  participation 
in,  and  supposed  privity  to,  the  acts  of  his  own  native  country,  then  at  war 
with  the  Crown  of  Great  Britain,  is  exchided  or  superseded  in  point  of  clfect 
by  an  express  privity  to,  and  immediate  participation  in  the  adverse  acts  of  the 
British  government.  As  far  as  the  plaintitf  and  the  Spanish  purchasers  of 
this  cargo  are  concerned,  they  are  actually  privy  to  the  objects  of  the  British 
Government,  and  acting  in  furtherance  thereof,  if  in  direct  opposition  to  the 
laws  and  policy  of  their  own  country.  And  it  will  not  be  contended  to  be 
illegal  to  insure  a  trade  carried  *on  in  contravention  of  the  laws  of  p  ^^22  1 
a  state  at  war  with  us,   and  in  furtherance  of  the  policy  of  our  L  J 

country  and  its  trade ;  and  which  this  trade  in  question,  sanctioned  as  it  is  by 
his  Majesty's  license,  must  be  deemed  to  have  been."  (a) 


SECTION  Xlll. 

BARRATRY  OF  THE  MASTER  OR  MARINERS. 

This  "risk,"  which  the  underwriters  likewise  take  upon  themselves,  is  thus 
defined  by  Postlethivaite,  in  his  Diet.  Tr.  and  Com.  vol.  1,  p.  214,  where  he 
says,  "Barratry  is  when  the  master  of  a  ship  or  the  mariners  cheat  the  owners 
or  assurers,  whether  by  running  away  with  the  ship,  sinking  her,  deserting 
her,  or  embezzling  the  cargo."  The  owners  are  as  much  cheated  and  de- 
frauded, if  the  vessel  is  run  away  with  by  the  sailors,  as  if  it  is  run  away  with 
by  the  master.  But  Postlefkwaite,  in  vol.  1,  p.  136,  title  "Assurance,"  gives 
a  definition  of  barratry,  which  applies  more  immediately  to  the  present  subject. 
He  says,  "One  species  of  barratry  in  a  marine  sense  is,  when  the  master  of  a 
ship  defrauds  the  owners  or  assurers  of  her,  by  carrying  her  a  different  course 
to  their  orders." 

In  the  case  of  Vallejo  v.  Wheeler,  (b)  it  was  said  on  the  argument,  that  the 
only  two  cases  in  the  common  law  books  on  barratry  that  are  worth  mentioning, 
are  Knight  V.  Cambridge,  (c)  and  Stammav.  Brown,  (d)  In  the  first  of  these 
cases  it  is  holden,  that  barratry  extends  to  every  fraud  of  the  master ;  and  what 
is  said  at  the  conclusion  of  that  case,  is  the  best  doctrine  that  can  prevail  in 
insurances.  "The  end  of  insuring  is  to  be  safe,  at  all  events  5  and  it  would 
be  very  prejudicial  if  the  Court  were  to  be  making  loop-holes  to  get  out  of 
policies.  *The  assurer  knows  the  master,  and  whether  he  can  trust  p  #000  ~\ 
him  j  and  he  that  insures  against  his  running  away  with  the  ship,  ^  -I 

never  imagined  he  might  or  would  be  guilty  of  any  other  fraud." 

"The  principles  of  the  second  case  apply  very  strongly  to  the  present,  for 
here  there  was  a  formed  design  to  deceive  the  assured  5  the  captain  (Ud  not  go 
to  Guernsey  for  the  benefit  of  his  owners,  but  for  his  own  benefit  only,  and  in 
going  there  he  acted  inconsistent  with  his  duty  to  his  owners." 

Lord  Mansfiekl,  after  the  argument  for  a  new  trial  in  the  above  mentioned 
case  of  Vallejo  v.  Wheeler,  [a)  and  after  stating  the  case  at  large,  delivered  his 

(fl)  This  subject  is  discussed  in  part  ii.  sect.  ii.  on  «' Illegal  Voyages,"  see  post. 

(b)  Cowp.  153. 

(c)  Strange,  581;   1  Lord  Raym.  1349,  S.C. 

Id)  Strange,  1173.  (a)  Cowp.  143. 


178  BARRATRY  OF  "AlE  MASTER  OR  MARINERS. 

opinion  as  follows  : — "The  ground  of  the  motion  for  a  new  trial  in  this  case 
is,  that  under  the  circumstances  of  the  case  as  they  were  given  in  evidence  to 
the  jury,  the  carrying  the  ship  to  Guernsey  was  merely  a  deviation,  {b)  but  not 
barratry ;  and  much  more  stress  was  laid  at  the  trial  than  in  either  of  the  argu- 
ments, upon  this  particular  fact,  namely,  that  the  deviation  being  with  the 
knowledge  of  the  owner  (though  not  owner  pro  hac  vice)  of  the  ship,  it  could 
never  be''  barratry ;  the  jury  were,  therefore,  pressed  to  say  whether  it  was 
with  the  consent  of  WiUes  or  not :  and  they  said  it  was.  To  be  sure  nothing 
is  so  clear,  as  that  if  the  owner  of  a  ship  insures  and  brings  an  action  on  the 
policy,  he  can  never  set  up  as  a  crime  a  thing  done  by  his  own  direction  or 
consent.  It  was  a  material  fact  to  proceed  upon,  if  TVilles  had  had  anything 
to  do  in  the  case,  but  he  had  not. 

"It  appeared  to  me  that  the  nature  of  barratry  had  not  been  judicially  con- 
sidered or  defined  in  England  with  accuracy.  In  all  mercantile  transactions 
the  great  object  should  be  certainty  :  and,  therefore,  it  is  of  more  consequence 
that  a  rule  should  be  certain,  than  whether  the  rule  is  established  one  Avay  or 
the  other,  because  speculators  in  trade  then  know  what  ground  to  go  upon. 
But  it  is  not  easy  to  collect  with  certainty  from  a  general  verdict,  or  from  notes 
r  *q9J.  "1  ^^^^^  ^^  A7.SI  *Priiis,  what  was  the  true  ground  of  decision  :  there- 
L  J  fore  in  this,  as  in  all  doubtful  cases,  I  wished  a  case  to  be  made 

for  the  opinion  of  the  Court.  It  appeared  on  the  former  argument  and  now, 
that  there  are  but  three  common  law  cases  relative  to  barratry.  The  first  is 
Knight  V.  Cambridge,  1  Strange,  581 ;  the  next,  Stamma  v.  Broion,  2 
Strange,  1173;  the  last  common  law  case  is  Elton  v.  Brogden,  2  Strange, 
1264.  In  that  case  neither  the  terms  of  the  first  or  second  policy  are  stated, 
and  yet  they  must  have  been  special  The  only  question  seems  to  have  been, 
whether  the  capture  of  a  second  prize  justified  the  second  return  of  the  ship  to 
Bristol.  The  Court  held  that  it  did  :  if  so,  there  could  be  no  barratry,  because 
the  captain  and  mariners  acted  to  the  best  of  their  judgment,  for  the  benefit  of 
the  owners.  Whatever  excused  the  deviation,  proved  that  the  deviation  could 
not  be  barratry. 

"But  these  cases  do  not  afford  any  precise  definition  of  what  barratry  is, 
therefore  I  wished  the  cause  to  stand  over  to  be  argued  by  one  counsel  on  a 
side.  I  have  in  the  meantime  considered  it,  and  consulted  with  men  convex - 
sant  with  mercantile  affairs,  and  I  am  now  very  clear. 

"The  first  thing  to  be  considered  is,  what  is  meant  by  barratry  of  the  mas- 
ter ?  I  take  the  word  to  have  been  originally  introduced  by  the  Italians,  who 
were  the  first  great  traders  of  the  modern  world.  In  the  Italian  Dictionary 
the  word  '^barratrare''^  means  to  cheat,  and  Avhatsoever  is  by  the  master  a 
cheat,  a  fraud,  a  cozening,  or  a  trick,  is  barratry  in  him :  nothing  can  be  so 
general.  Here  the  underwriter  has  insured  against  all  barratry  of  the  master, 
and  we  are  not  now  in  the  case  of  an  owner  or  freighter  being  privy  to  it :  if 
we  were,  nothing  is  so  clear  as  that  no  man  can  complain  of  an  act  done  to 
which  he  himself  is  a  party.  In  the  present  case,  all  relative  to  TVilles  may 
be  laid  out  of  it ;  he  is  originally  the  owner,  but  not  the  assured  here.  Dar- 
win freighted  the  ship,  and  the  goods  that  were  on  board  were  his ;  if  any 
fraud  is  committed  on  the  owner,  it  is  committed  on  Darwin.  The  question 
r  *'\2'S  1  ^^^^^^  ^^'  ^^^^^  ^^  ^^^^  ground  of  complaint  against  *the  master.^  He 
L  J  had  agi-eed  to  go  on  a  voyage  from  London  to   Seville;  Darivin 

trusts  he  will  set  out  immediately :  instead  of  which  the  master  goes  on  an 
iniquitous  scheme,  totally  distinct  from  the  purpose  of  the  voyage  to  Seville: 
that  is  a  cheat,  and  a  fraud  on  Darwin,  who  thought  he  would  set  out  directly; 


(S)  See  ante,  p.  231. 


BARRATRY    OF    THE    MASTER   OR   MARINERS.  179 

and  whether  the  loss  happened  in  the  act  of  barratry,  that  is  during  the  fraudu- 
lent voyage  or  after,  is  immaterial,  because  the  voyage  is  equally  altered,  even 
though  diere  is  no  other  iniquitous  intent;  but  in  the  present  case,  there  is  a 
great  deal  of  reason  to  say,  that  the  loss  sustained  was  in  consequence  of  the 
alteration  of  the  voyage.  The  moment  the  ship  was  carried  from  its  right 
course  it  was  barratry,  and  the  loss  Avas  immediately  upon  it.  Suppose  the 
ship  had  been  lost  afterwards,  what  would  have  been  the  case  of  the  assured, 
if  not  secured  against  the  barratry  of  the  master.^  He  would  have  lost  his 
insurance  by  the  fraud  of  the  mastei-,  for  it  was  clearly  a  deviation,  and  the 
assured  cannot  come  upon  the  underwriters  for  a  loss  in  consequence  of  a 
deviation.  Therefore  I  am  clearly  of  opinion  this  smuggling  voyage  was  bar- 
ratry in  the  master." 

Aston,  J. — "I  wonder  that  there  should  remain  a  doubt  at  this  time  of  day, 
what  is  meant  by  barratry  of  the  master.  In  different  ordinances  different 
terms  are  used,  but  they  all  have  the  same  meaning.  In  one  of  the  ordinances 
of  Stockholm  it  is  called  "knavery  of  the  master  or  mariners  :"  and  the  facts 
stated  in  the  present  case  clearly  fall  within  that  description.  The  ship  having 
been  freighted  to  Dancin,  the  jury,  therefore,  did  right  to  consider  Darwin  as 
owner  "/jro  hcic  vice."  Having  considered  him  in  that  light,  the  conduct  of 
the  master  was  clearly  barratry.  For  he  was  acting  for  his  own  benefit,  and 
without  the  consent,  or  privity,  or  any  intended  good  to  his  owner.  Nobody 
knew  when  the  first  commencement  of  the  injury  happened  ;  but  most  probably, 
on  the  return  of  the  ship  to  Dartmouth  from  Guernsey,  where  he  had  been  for 
the  purpose  of  smuggling.  Therefore,  I  am  clearly  of  opinion,  that  this 
change  of  the  voyage  for  an  iniquitous  purpose  was  barratry ;  r-  jjtqno  t 
*which  is  not  confined  to  the  running  away  with  the  ship,  but  com-  L  J 

prebends  every  species  of  fraud,  knavery,  or  criminal  conduct  in  the  master, 
by  which  the  owners  or  freighters  are  injured." 

TVilles,  J.  concurred. — "The  only  doubt  in  this  case  was,  when  the  loss 
accrued.  And  I  think  it  may  reasonably  be  said  to  have  happened  in  conse- 
quence of  the  smuggling  voyage :  for  if  the  ship  had  proceeded  on  her  first 
intended  voyage  she  would  have  escaped  the  storm.  Though  this  was  a  devia- 
tion, yet  it  is  a  just  and  fair  rebutter  to  say,  it  was  barratry  in  the  master,  which 
is  insured  against  in  the  policy." 

Ashurst,  J. — "I  continue  of  the  same  opinion,  which  I  did  at  the  trial :  and 
I  think  that  the  plaintiffs  have  a  right  to  recover  on  either  count  in  the  declara- 
tion. First,  for  the  loss  at  sea.  For  it  does  not  lie  in  the  mouth  of  the  assurer 
to  object  on  the  ground  of  its  being  a  deviation,  and  so  prevent  the  plaintiffs' 
recovering  on  that  count :  because  the  act  of  the  master  is  a  fraudulent  act,  and 
if  the  loss  is  consequential  upon  such  fraudulent  act,  it  is  barratry  against  which 
the  party  is  insured :  and,  therefore,  the  insurers  shall  not  object  upon  a  fact 
which  is  itself  a  forfeiture  of  the  policy." 

In  the  case  of  Dixon  v.  Reid,  (a)  which  was  an  action  on  a  policy  of  insu- 
rance on  "ship"  and  "cargo,"  at  and  from  Sierra  Leone  to  a  port  of  discharge 
in  Great  Britain:  the  facts  were,  that  after  the  vessel  set  sail  with  her  cargo 
of  timber  on  board,  from  Sierra  Leone  on  her  voyage  to  Europe,  she  was  bar- 
ratrously  taken  out  of  her  course  by  the  crew,  and  the  ship  and  part  of  the 
cargo  sold  and  the  remainder  sent  home  by  another  vessel,  and  the  assured 
abandoned  to  the  underwriters :  it  was  held  that  this  was  a  total  loss  of  the 
cargo,  from  the  time  of  the  committing  the  act  of  barratry.  Abbott,  C.  J., 
observing,  on  the  motion  for  a  new  trial,  "I  am  of  opinion  that  is  a  case  of  a 
total  loss,  with  benefit  of  salvage.     The  case  is  plainly  distinguishable  from  all 

(a)  5  B.  &  A.  597. 


180  BARRATRY   OF    THE    MASTER   OR   MARINERS. 

the  cases  referred  to  in  the  argument,  where  the  ships  have  been  driven  out  of 
r  SQo-7  n  *^^^^^^  course  by  the  perils  of  the  sea,  and  the  voyage  thereby 
L  "^•^'  J  retarded.  In  these  cases  the  cargo  vi^as  during  the  whole  time  in 
the  possession  of  the  assured.  Here  by  the  fraud  and  barratry  of  the  master 
and  mariners  the  cargo  was  taken  out  of  the  possession  of  the  assured.  From 
that  time  it  became  to  them  a  total  loss." 

In  another  case  of  Roscow  v.  Corson,  (a)  which  was  an  action  upon  a  policy 
of  insurance,  whereby  the  cargo  on  board  the  "ship"  Ncwry  was  insured  "at 
and  from  St.  Peterahurg  to  Liverpool.''''  The  cause  was  tried  before  C,  .T. 
Ballas  at  the  Zonrfon  Sittings  after  Easter  Term,  1818.  The  facts  were 
these :  the  vessel  set  sail  on  her  voyage,  and  having  met  with  bad  weather,  was 
compelled  to  put  into  Yarmouth  for  the  purpose  of  repair :  while  the  repairs 
were  proceeding  the  captain  went  to  Ireland  to  visit  his  family  and  continued 
absent  for  a  much  longer  time  than  was  necessary  to  finish  the  repairs ;  and 
during  his  absence,  procured  forged  papers.  He  afterwards  returned  to  the 
vessel,  and  instead  of  proceeding  on  the  voyage  insured,  he  carried  her  into  a 
foreign  port.  On  the  trial  of  the  cause,  Dallas^  C.  J.  left  it  to  the  jury  to  con- 
sider at  what  time  the  barratry  had  commenced :  and  they  having  found  that 
the  barratry  was  in  prosecution  at  Yarmouth,  found  a  verdict  for  the  plaintiff. 
Upon  a  motion  for  a  new  trial,  Dallas,  Chief  Justice,  said,  "This  case  was 
tried  upon  facts  admitted  by  the  parties.  The  jury  found  that  the  barratry  not 
only  had  its  beginning  in  conception  at  Yarmouth,  but  also  in  prosecution. 
The  cargo  might  have  been  discharged  and  taken  on  board  again  within  a  much 
shorter  space  of  time.  The  vessel  might  have  been  ready  about  the  4th  or  5th 
of  January,  but  remained  till  the  middle  of  March.  The  captain  staid  in 
Ireland  until  15th  February ;  the  original  papers  were  destroyed;  the  name  of 
the  vessel  altered ;  her  destination  changed  in  the  prosecution  of  the  voyage  ; 
and  there  is  no  account  of  the  loss  of  the  time  from  25th  December,  to  the 
r  *^9S  1  ^^"^^^^^  of  March,  *during  which  time  the  captain  was  in  Ireland. 
L  J  It  has  been  said  there  is  merely  presumption  and  conjecture;  but 

that  must  always  be  the  case  in  matters  of  fraud,  which  are  hatched  in  secret. 
I  told  the  jury,  that  they  had  to  consider,  not  only  whether  the  intention  was 
conceived  at  Yarmouth,  but  they  should  also  consider  the  circumstance  of  the 
delay  in  Ireland,  where  alone  the  captain  could  have  provided  himself  with  the 
forged  papers.  The  jury  agreed  that  they  could  not  account  for  this  delay  in 
any  other  manner  than  that  of  its  arising  from  an  act  of  barratry.  In  my  opin- 
ion there  is  no  ground  for  disturbing  the  verdict."  Park,  J.,  Burrough,  J. 
and  Richardson,  J.  concurred,  and  the  rule  was  refused. 

But  it  was  held  in  the  case  of  Lockyer  v.  Offley,  (6)  that  where  the  master, 
in  the  course  of  the  voyage,  committed  barratry  by  hovering  and  running  brandy 
ashore  in  casks  under  sixty  gallons  :  and  that  the  ship  then  arrived  in  safety  at 
her  moorings  in  the  Thames:  and  rem.ained  there  in  safety  for  twenty-seven 
days,  when  she  was  seized  by  the  revenue  officers  for  the  smuggling  mentioned  : 
that  about  a  fortnight  after  the  seizure  the  assured  informed  the  underwriters 
thereof,  and  that  they  would  hold  them  liable,  on  the  policy,  it  was  held  that 
the  assured  could  not  recover  for  the  loss  which  had  been  occasioned  by  the  act 
of  barratry  committed  during  the  voyage,  but,  for  which,  the  ship  was  not 
seized  till  she  had  anchored  safely  more  than  'twenty-four  hours'  in  her  port 
of  discharge.  Willes,  J.  delivered  the  unanimous  opinion  of  the  Court  after 
stating  the  case. 

"The  question  for  the  consideration  of  the  Court  is,  whether  the  plaintiffs 
can  recover  under  these  circumstances  against  the  defendants  :  and  there  is  no 


(a)  8  Taunt.  684.  (i)   I  T.  R.  252,  ante,  p.  153. 


BARRATRY    OF    THE    MASTER    OR    MARINERS.  181 

doubt  in  this  but  that  the  master  was  guilty  of  barratry  by  smuggling  on  his 
own  account  without  the  privity  of  his  owners. 

"Many  definitions  of  'barratry'  are  to  be  found  in  the  books;  but  perhaps 
this  general  one  may  comprehend  almost  *all  the  cases.  'Barratry  ^  ^„,,„  -. 
is  every  species  of  fraud  or  knavery  in  the  master  of  the  ship  by  ^  J 

which  the  freighters  or  owners  are  injured;'  and  in  this  light  a  criminal  devia- 
tion is  barratry,  if  the  deviation  be  without  their  consent. 

"But  the  general  question  here  is,  whether,  as  the  loss  occasioned  by  the 
barratry  of  the  master  did  not  happen  during  the  continuance  of  the  voyage, 
the  assurers  are  liable?  I  must  own,  this  appears  to  me  to  be  a  novel  question, 
and  not  to  have  been  decided  by  any  former  determination.  But,  as  in  all 
commercial  transactions  the  great  object  is  certainty,  it  will  be  necessary  for 
this  Court  to  lay  down  some  rule,  and  it  is  of  more  consequence  that  the  rule 
should  be  certain,  than  whether  it  is  established  one  way  or  the  other."  His 
Lordship  then  proceeded,  as  will  be  found  at  an  earlier  part  of  this  Treatise,  (o) 
and  concluded  by  laying  down  the  above  rule  "of  the  loss  happening  after  the 
ship's  being  moored  twenty-four  hours  in  good  safety."     Postea  to  defendant. 

It  has  been  decided,  that  the  terms  "let  to  freight  and  hire"  in  a.  charter- 
party,  are  not  essential,  in  order  to  constitute  the  freighter  owner  for  the  time, 
so  as  to  make  his  consent,  and  not  that  of  the  general  owner,  the  criterion  by 
which  the  question  of  barratry  is  to  be  determined ;  it  is  sufficient  if  the  con- 
tract gives  the  charterer  the  control  of  the  vessel  for  the  voyage  in  question.  (6) 

Thus  in  the  case  of  Soares  and  others  v.  Thornton,  (c)  where  a  covenant 
was  made  by  the  owner  with  the  freighter  of  a  ship,  that  the  ship  should 
receive  on  board  a  specified  weight  of  goods  (not  amounting  to  the  entire  quan- 
tity the  ship  could  take  in)  to  be  carried  on  the  voyage,  with  a  proviso,  that 
the  owner  might  fill  up  the  ship  with  goods  at  intermediate  places,  if  the 
freighter  should  not  fill  it  up,  renders  the  freighter  so  far  owner  for  the  voyage, 
that  if  the  general  owner,  by  connivance  with  the  master,  be  guilty  of  running 
the  ship  on  shore,  to  defraud  the  freighter,  this  may  *be  alleged  to  p  ^qqq  n 
be  a  loss  by  barratry,  especially  if  the  loss  do  not  take  place  till  L  -' 

after  the  freighter  has  made  his  election  to  fill  up  the  ship  with  one  entire  cargo. 

And  although  the  general  owner  may  not  so  far  have  divested  himself  of 
control  over  the  ship  as  to  have  lost  his  right  of  lien  for  the  freight,  yet  barratry 
may  still  be  committed,  if  the  act  be  done  without  the  consent  of  the  freighter 
or  special  owner,  though  the  general  owner  be  an  assenting  party,  (a) 

In  a  subsequent  case  of  Boss  v.  Hunter,  {b)  which  was  an  action  on  a  policy 
on  goods  on  board  the  Live  Oak,  whereof  Joseph  Rati  was  master,  at  and 
from  Jamaica  to  New  Orleans,  it  appeared  that  the  ship  was  put  up  as  a  general 
ship  at  Jamaica  in  1783  ;  that  she  sailed  on  the  voyage  insured  in  May,  1783, 
and  arrived  in  June  following  at  the  mouth  of  the  river  Mississippi,  which 
leads  up  to  New  Orleans  in  Spanish  America,  at  the  distance  of  about  thirty- 
five  leagues.  When  the  captain  had  got  thus  far  he  dropped  anchor,  and  went 
in  his  boat  up  the  river  to  Neio  Orleans,  and  on  his  return,  without  carrying 
the  ship  to  her  port  of  destination,  stood  away  for  the  Havannah,  after  which 
he  was  never  heard  of.  It  appeared  that  he  had  a  private  adventure  of  negroes 
of  his  own  on  board,  which  there  was  reasonable  evidence  for  supposing  he 
intended  to  have  disposed  of  at  New  Orleans,  but  finding  it  difficult  to  do  so, 


(a)  See  ante,  p.  154,  a  full  report  of  his  Lordship's  judgment. 
\b)  See  Christie  v.  Lewis,  2  Brod.  &  Bing.  445. 

(c)  7  Taunt.  627. 

(«)  SaviUe  V.  Campion,  2  B.  &  A.  503.     Tate  v.  Meek,  8  Taunt.  280. 

(b)  4  T.  R.  33.     See  the  previous  case  of  Vallejo  v.  Wheeler,  Cowp.  143,  at  the  com- 
mencement of  this  section. 


182  BARRATRY    OF    THE    MASTER    OR   MARINERS. 

on  account  of  a  prohibition  to  import  them  into  the  Spcmish  government,  he 
went  to  the  Havminah.  The  jury  found  for  tlie  plaintifl'  on  the  count  in  the 
declaration,  charging  the  barratry  of  die  master,-  and  tlie  whole  Court  of  King's 
Bench,  upon  a  motion  for  a  new  trial,  were  of  opinion,  that  the  facts  stated 
am.ounted  clearly  to  the  crime  of  barratry. 

So,  also,  it  has  been  held  by  the  Court  of  King's  Bench,  in  the  case  of 
P  ^  „.  -,  Moss  V.  Byrom,  (c)  that  if  the  captain  of  a  ship,  *contrary  to  the 
L  "^331  J  j^g^j-uctions  of  his  owner,  cruize  for  and  take  a  prize,  and  the  vessel 
is  afterwards  lost  in  consequence  of  it,  he  is  guilty  of  barratry,  even  though  he 
libel  his  prize  in  the  Court  of  Admiralty  in  the  name  of  himself  and  his  owner; 
and  though  the  owner  had  procured  a  letter  of  marque,  solely  with  a  view  to 
encourage  seamen  to  enter,  and  without  any  intention  of  using  it  for  the  pur- 
pose of  cruizing ;  for  whatever  is  done  by  the  captain  to  defeat  or  delay  the 
performance  of  the  voyage,  is  barratry  in  him,  it  being  to  the  prejudice  of  his 
owners ;  and  though  the  captain  might  conceive  thai  what  he  did  was  for  the 
benefit  of  his  owners,  yet  if  he  acted  contrary  to  his  duty  to  them,  it  is  barra- 
try. In  this  case  it  also  appeared,  that  the  captain  had  boarded  and  plundered 
an  American  ship,  which  they  afterwards  released,  before  he  cruized  for  and 
took  the  prize  in  question. 

Two  cases  have  arisen  in  which  the  doctrine  of  barratry  was  much  consid- 
ered :  in  the  first  of  them,  Phyn  v.  Boyal  Exchange,  (a)  the  Court  of  King's 
Bench,  after  considerable  argument,  were  unanimously  of  opinion,  that  there 
must  be  fraud  to  constitute  barratry,  and  that  the  jury,  by  negativing  fraud,  had 
in  truth,  by  that  finding,  negatived  barratry. 

But  in  the  second  of  those  cases,  Earle  and  others  v.  Roxocroft,  {b)  the 
definitions  of  barratry,  and  the  ingredients  necessary  to  constitute  that  oflence, 
were  very  elaborately  argued  at  the  Bar :  and  after  time  taken  for  deliberation, 
Lord  EUcnboroiigh  pronounced  the  unanimous  judgment  of  the  Court  in  a  very 
learned  and  luminous  argument,  in  which  his  Lordship  entered  into  a  full  con- 
sideration of  all  the  prior  cases. 

It  was  an  action  on  a  policy  of  insurance,  at  and  from  Liverpool  to  the  coast 
of  Africa^  during  her  stay  and  trade  there,  and  to  the  port  of  sale  in  the  West 
Indies,  and  the  plaintiff's  averred  the  loss  to  be  by  barratry  of  the  master.  It 
r  »'i'^9  1  'IPP^^^^'I  i"  evidence  that  the  master,  who  was  also  supercargo, 
L  J  *on  his  arrival  off  Cape  Coast  Castle,  a  British  settlement  on  the 

coast  of  Africa,  let  go  an  anchor  and  began  to  trade  for  two  days  there;  but 
receiving  intelligence  that  he  could  barter  his  goods  for  slaves  more  expedi- 
tiously and  advantageously  at  D^ Elmina,  a  Dutch  fort,  about  seven  miles  to 
windward,  be  weighed  anchor  and  proceeded  to  this  latter  place,  Avhich  had  the 
Butch  flag  fiying  and  guns  mounted,  where  he  exchanged  his  goods,  consist- 
ing, amongst  other  things,  of  muskets  and  gunpowder,  with  the  Dutch  gover- 
nor, and  anotlier  resident  there  for  slaves.  Holland  -was  at  that  time  at  war 
witli  Great  Britain,  and  he  had  a  letter  of  marque  on  board  against  the  French 
and  Dutch.  After  taking  on  board  a  number  of  slaves,  the  captain  who  was 
then  on  shore  at  jyEhnina,  receiving  information  that  an  English  frigate  was 
in  sight,  sent  a  note  on  board  his  own  ship,  directing  her  to  sail  immediately 
to  Cape  Coast,  to  prevent  mischief,  as  he  expressed  himself;  but  before  she 
reached  Cape  Coast,  she  was  pursued  and  captured  by  the  English  frigate, 
and  condemned  for  having  traded  widi  the  enemy.  It  further  appeared,  that  it 
had  l)ccn  usual  to  keep  up  a  trading  intercourse  in  boats  and  small  craft,  between 
the  English  aud  Dutch  setdements  on  this  coast,  even  in  time  of  war  between 


(c)  G  T.  R.  379,  ante,  p.  347.  (a)  7  T.  R.  505. 

lb)  8  East,  12G. 


BARRATRY    OF    THE    MASTER   OR    MARINERS.  183 

the  mother  countries  :  and  that  the  captain's  object  in  goinsr  to  D^ Ehnina  was  to 
complete  his  car^o  as  cheaply  and  expeditiously  as  he  could.  It  was  admitted 
that  he  had  no  particular  instructions  to  ffo  there,  but  that  he  was  directed  Sfcn- 
erally  to  make  the  best  purchases  with  despatch.  It  was  also  proved  that  when 
the  ship  was  about  to  go  to  JX FAinina,  the  surgeon  asked  the  captain  if  there 
was  no  impropriety  in  ffoinor  tluTC.  to  which  he  answered  that  tliey  should  be 
soon  gone,  and  nobody  would  know  it;  and  also  that  besides  his  usual  pay  as 
captain,  he  had  a  commission  on  purchases  and  sales,  which  he  was  entiUed  to 
receive  at  the  end  of  the  voyage.  Lord  Elknborottgh  at  the  trial  was  of  opin- 
ion, that  this  tradincj  with  the  enemy  by  the  captain,  without  the  authority  of 
his  ow-ners,  thousjli  intended  principally  for  their  benefit,  being  in  contravention 
of  his  duty  to  them,  and  subjecting  *their  property  to  confiscation,  ^  ^„„„  -, 
was  barratry :  but  as  the  case  was  new  in  specie,  his  Lordship  L  J 

gave  the  defendant  leave  to  move  to  enter  a  nonsuit.  A  motion  having  accord- 
ingly been  made  for  that  purpose,  it  was  insisted  by  the  counsel  for  the  defend- 
ant, that  the  act  done  must  be  a  breach  of  trust,  and  done  ex  malejicio;  and 
that  here  the  obvious  motive  of  the  act  was  to  make  the  speediest  and  cheapest 
purchases  for  his  employers. 

After  the  argument,  the  Chief  Justice  said  the  Court  would  look  into  the 
cases,  but  added: — ''I  cannot  refrain  from  making  a  few  observations  now. 
It  has  been  asked,  How  is  this  act  of  the  captain,  in  going  to  D^ Ehnina^  in 
order  to  purchase  the  cargo  for  his  owners  more  cheaply  and  more  expedi- 
tiously, a  breach  of  trust  as  between  him  and  them?  Now  I  conceive  that  the 
trust  reposed  in  the  captain  of  a  vessel  obliges  him  to  obey  the  written  instruc- 
tions of  his  owners,  where  they  give  any  ;  and  where  his  instructions  are 
silent,  he  is  at  all  events  to  do  nothing  but  what  is  consonant  to  the  laws  of 
the  land,  whether  with  or  without  a  view  to  their  advantage :  because,  in  the 
absence  of  express  orders  to  the  contrary,  obedience  to  the  law  is  implied  in 
their  instructions.  Therefore  the  master  of  a  vessel  who  does  an  act  in  con- 
travention of  the  laws  of  his  country,  is  guilty  of  a  breach  of  the  implied 
orders  of  his  owners.  I  cannot,  therefore,  for  a  moment  sufier  it  to  be  sup- 
posed, that  a  captain  is  not  guilty  of  a  breach  of  trust  to  his  owners  who,  in 
contravention  of  the  law  (the  observance  of  which,  nothing  beinc:  expressed  to 
the  contrary,  is  implied  in  their  orders)  does  an  act  which  is  injurious  to  them." 

In  a  few  days  afterwards,  Lord  Ellcnborongh  delivered  the  judgment  of  the 
Court: — ''The  question  in  this  case  is,  whether  a  loss  of  a  ship  insured, 
by  an  illegal  act  of  the  master,  not  authorized  by  his  owners,  in  going  into 
i)^Elmina.  a  Dutch  and  enemy's  port  on  the  coast  of  Jlfrica,  and  trading 
there  for  slaves  by  a  barter  of  arms  and  warlike  stores,  on  account  of  which 
illeo-al  traffic  the  vessel  insured  was  seized  by  a  kinsf's  ship,  and  afterwards 
condemned  on  that  account  *in  the  West  Indies,  be  barratry  :  or  p  *qq  <  -i 
whether,  as  was  contended  on  the  part  of  the  defendant,  in  order  •-  -' 

to  constitute  barratry,  the  act  should  not  appear  to  have  been  done  with  a  vie^v 
o(  promoting  the  master's  benefit  to  the  prejudice  of  his  owners.  It  is  extra- 
ordinary that  this  species  of  loss,  occasioned  by  the  misconduct  of  the  master, 
selected  and  appointed  as  he  is  by  the  owners  themselves,  and  liable  to  be 
dismissed  by  them  only,  should  ever  have  been  made  the  subject  of  insurance : 
and  it  is  the  more  so,  as  it  has  an  impolitic  tendency  to  enable  masters  and 
owners,  by  a  fraudulent  and  secret  contrivance  and  understanding  between 
themselves,  to  throw  the  ill  success  of  an  illegal  adventure,  of  which  the  benefit, 
if  successful,  would  have  belonged  solely  to  themselves,  upon  the  underwri- 
ters. So,  however,  it  is  that  this  description  of  loss  has,  from  the  earliest 
times,  held  its  place  as  a  subject  of  indeiBuity  in  British  policies  of  insurance. 

•'  The  original  meaning  of  the  term  is  to  be  collected  from  the  Italian  lan- 
guage, and  is,  according  to  Dufresue's  Glossary,   -Verbum  Barratria,  fraus, 


184  BARRATRY    OF    THE    MASTER   OR    MARINERS. 

dolus,  quit  fit  in  contractibus  et  venditionibus.' («)  He  does  not  apply  it  in 
any  marine  sense,  or  with  reference  to  the  particular  relation  of  master  and 
owners.  In  that  sense,  however,  in  which  it  is  peculiarly  used,  as  applied  to 
subjects  of  British  marine  insurances,  in  the  earliest  reported  case  we  find  on 
the  subject,  it  is  considered  as  being  precisely  tantamount  to  fraud,  in  the  par- 
ticular relation  wliich  subsists  between  master,  mariners,  and  owners :  being 
such  by  which  a  loss  may  happen  to  the  subject-matter  insured. 

"In  Knight  v.  Cambridge,  (b)  where  the  breach  was  assigned  on  a  loss 
'per  fraudein  et  negligentiam'  of  the  master;  and  where  it  was  objected,  in 
arrest  of  judgment,  that  the  fraud  and  negligence  of  the  master  were  not  within 
r  *'i^^  1  ^'^^  policy,  being  more  general  than  the  word  barratry,  Raymond, 
L  ^^^^  J  *j__^  [^  tl^e  same  case,  {a)  held  that,  'per  fraudem  aut  negligen- 
tiam  would  not  have  been  good.'  So  that  the  negligence  was  considered  as 
immaterial,  and  the  fraud  as  being  the  substantial  matter  constituting  the  bar- 
ratry. And  the  Court  (in  the  report  in  Strange)  held  that  negligence  was  not 
within  the  policy,  but  that  fraud  was.  Now,  as  no  limitation  is  put  upon  that 
term  in  the  record  in  Knight  v.  Cambridge,  we  must  understand  the  Court  as 
holding  that  fraud  and  barratry  were,  in  effect,  words  of  co-extensive  import : 
that  is,  that  barratry  included  every  species  of  fraud  in  the  relation  to  the 
master  to  the  owners,  by  which  the  subject  matter  might  be  endangered.  The 
particular  manner  in  which  the  loss  was  in  that  case  occasioned  does  not  appear 
iii  any  of  the  reports  of  it  cither  in  Strange,  Lord  Raymond,  or  8  Modern. 
But  a  MS.  note  of  Mr.  Ford  of  the  argument  in  Stamma  v.  Broivn,  [b)  in 
referring  to  the  case  of  Knight  v.  Cambridge,  and  describing  the  question  in 
that  case  upon  the  record,  and  stating  that  'fraud  was  barratry,'  adds,  'if  the 
master  sail  out  of  port  without  paying  port-dues,  whereliy  the  goods  are  for- 
feited, lost,  01  spoiled,  that  is  barratry  (c)  (and  which  probably  was  the  question 
of  fact  decided  at  the  trial,  or  upon  a  case  in  the  Common  Pleas.)  And  from 
what  is  said  of  the  facts  of  Knight  v.  Cambridge,  in  J'aUejo  v.  JVheeler,  [d) 
botli  by  counsel,  and  by  Lord  Mansfield,  it  was  a  case  in  which  the  captain, 
whose  duty  it  was  to  have  paid  the  port-duties  before  the  ship  went  out  of 
])ort,  had  not  done  so ;  and  is,  tlierefore,  most  probably  the  case  as  is  alluded 
to  by  Lord  C.  J.  Lee,  in  Stamma  v.  Broivn,  where  he  compared  the  case 
then  in  question  'to   the  case  of  sailing  out  of  port  without  paying  duties, 

r  *33G  1  ^^'''*'''^'^y  ^'^"^  ^'^ip  *^^'^^  subject  to  forfeiture,  and  which  had  been, 
L  J  he  says,  holden  to  be  barratry.' 

"In  a  MS.  note  of  the  case  of  Stamma  v.  Brown,  which  was  read  to  us 
by  my  Brother  Lawrence,  Lord  C.  J.  Lee  defines  barratry  as  being  'some 
breach  of  trust  in  the  captain  ex  maleficio:''  and  in  a  note  of  the  same  case, 
with  which  I  have  ])een  furnished  from  Mr.  Ford's  MS.,  Lord  C.  J.  I^ee  says, 
'barratry  must  be,  ex  maleficio,  with  intent  to  destroy,  waste,  or  embezzle 
the  goods ;  (that,  it  must  be  remembered,  was  a  policy  on  goods)  and,  there- 
fore, although  tliis  might  be  a  deviation,  yet  I  do  not  see  how  it  can  be  consid- 
ered as  barratry.     I  make  no  question  that  there  may  be  such  a  deviation : 


(a)  See  ante,  per  Lcrrd  Mansficltl,  in  Vallego  v.  Wheeler,  Cowp.  154,  p.  324  of  this 
Treatise. 

{}))  I  Str.  581.  In  Dixon  v.  Sadler,  5  M.  &  W.  p.  409,  Parke,  B.  says,  "The  rule 
is  tliat  a  If)ss  by  'barratry'  must  t)e  so  described." 

(a)  Mod.  Kep.  231.  "This  is  stated  in  the  margin  of  the  2nd  edit,  of  the  8th  vol.  of 
Mod.  K.  in  1760,  but  it  is  not  in  the  1st  edit.  1730,  nor  the  5th  edit.  1795.  Note  (a)  in 
8  East,  p.  135.  ^  ^ 

{!>)  2  Sir.  1 174. 

{c)  Thi'  same  account  of  the  case  of  Knight  v.  Cambridge  is  given  by  the  counsel  on 
both  sides  in  the  MS.  argument  of  Stamma  v.  Brown,  8  East,  note  (a")    (lA    136 

{il)  Cowp.  153.  '  \  J'\  J^         ■ 


BARRATRY    OF    THE    MASTER   OR   MARINERS.  185 

as  where  a  master  deviates  to  burn,  sink,  destroy,  or  throw  the  ship  into  the 
enemy's  hands  ;  or  whore  he  has  benefit  by  tlie  deviation,  as  lie  liimself  had 
insured  tlie  jroods ;  and  it  was  a  material  part  of  the  case  whether  the  master 
had  any  benefit  by  this  alteration  of  the  voyage,  for  that  might  have  been  evi- 
dence of  fraud  in  him,'  &c.  Of  course,  he  did  not  consider  the  benefit  of  the 
master  as  a  necessary  ingredient  in  tlie  constitution  of  barratry  in  all  cases,  but 
only  as  a  pregnant  circumstance  to  prove  the  existence  of  such  a  fraud  in  point 
of  fact,  in  a  particular  case." 

In  Nutt  V.  Jionrdinr,  (a)  liOrd  MunHfichl  defines  jjarratry  nearly  in  the 
same  terms,  viz  :  as  partaking  of  something  criminal,  and  as  committed  against 
the  owners  by  the  master  or  mariners. 

And  Jjord  Ilardwickc,  in  Leiven  v.  Suasso,  (6)  liad  before  defined  it  to  be 
"an  act  of  wrong,  done  by  the  master  against  the  ship  or  goods." 

In  Robertfion  v.  Ewer,  (c)  Buller,  J.,  upon  the  trial,  was  of  opinion  (and 
it  does  not  appear  upon  the  argument  to  have  been  denied  by  the  Court)  that 
sailing  out  of  port  without  leave,  in  breach  of  an  embargo,  in  consequence  of 
which  the  *owners  afterwards  sustained  a  loss  in  respect  of  sea-  ^  *o'J7  "i 
men's   wages  and   provisions,  by  the  detention  of  the  ship,  was  L  J 

barratry.  The  only  question  made  by  the  Court  was,  whether  a  loss  of  this 
kind  was  recoverable  on  a  policy  upon  'the  body  of  the  ship.'  And  although 
it  was  urged  in  argument  for  the  defendant  that  what  was  done  by  the  master 
had  been  intended  for  the  benefit  of  the  owners,  the  Court  did  not  advert  to  it 
as  a  point  at  all  material  to  the  decision  of  the  question. 

"After  these  various  decisions  of  Courts  of  Law,  we  are  certainly  warranted 
in  pronouncing,  that  a  fraudulent  breach  of  duty  by  the  master  in  respect  to  his 
owners;  or,  in  other  words,  a  breach  of  duty,  in  respect  to  his  owners,  with 
a  criminal  intent,  or  ex  male/icio,  is  barratry.  And  with  respect  to  the  owner 
of  the  ship  or  goods,  whose  interest  is  to  be  protected  by  the  policy,  it  can 
make  no  difference  in  the  reason  of  the  thing,  Avhether  the  prejudice  he  suffers 
be  owing  to  an  act  of  the  master,  induced  by  motives  of  advantage  to  himself, 
malice  to  the  owner,  or  a  disregard  to  those  laws  which  it  was  the  master's 
duty  to  obey,  and  Avhich  (or  it  would  not  be  barratry)  his  owners  relied  upon 
his  observing.  It  has  lieen  strongly  contended,  on  the  part  of  the  defendant, 
that  if  the  conduct  of  the  master,  although  criminal  in  respect  of  the  state, 
were,  in  his  opinion,  likely  to  advance  his  owner's  interest,  and  intended  by 
him  to  do  so,  it  will  not  be  barratry ;  but  to  this  we  cannot  assent.  For  it  is 
not  for  him  to  judge  in  cases  not  entrusted  to  his  discretion,  or  to  suppose  that 
he  is  not  breaking  the  trust  reposed  in  him  but  acting  meritoriously  when  he 
endeavours  to  advance  the  interest  of  his  owners  by  means  which  the  law  for- 
bids, and  whicli  his  owners  also  must  be  taken  to  have  forbidden,  and  not  only 
from  what  ought  to  be,  and  must  therefore  be  presumed  to  have  been,  their 
own  sense  of  public  duty,  but  also  from  a  consideration  of  the  risk  and  loss 
likely  to  follow  from  the  use  of  such  means.  In  laying  down  this  doctrine,  we 
feel  ourselves  supported  by  the  several  eminent  authorities  already  referred  to. 
And  in  giving  this  opinion,  *we  do  not  feel  any  apprehension  that  p  sooa  "i 
simple  deviations  will  be  turned  into  barratry  to  the  prejudice  of  *-  -^ 

the  underwriters  ;  for,  unless  they  be  accompanied  with  fraud  or  crime,  no  case 
of  deviation  will  fall  within  the  true  definition  of  barratry,  as  above  laid  down. 
Another  argument  was  used,  which  hardly  appears  to  have  been  used  seriously  ; 
namely,  that  the  captain,  in  this  case,  united  in  himself  the  two  characters  of 
supercargo  and  captain,  and  that,  as  captain,  he  must  be  considered  as  obeying 

(a)   1  T.  R.  323,  post.  (b)   Postcth.  147,  tit.  Assurance, 

(c)   1  T.  R.  127. 


186  BARRATRY    OF    THE    MASTER   OR   MARINERS. 

the  directions  of  his  owners,  given  to  himself,  as  captain,  by  himself,  in  his 
character  of  supercargo.  It  is  sufficient  to  state  such  an  argument,  to  show  it 
can  have  no  weight.  The  directions  of  the  owners  as  to  the  conduct  of  the 
vovage,  and  as  to  the  places  where  the  trade  was  to  be  carried  on,  are  to  be 
looked  for  in  their  instructions  :  which,  coupled  with  their  duty  to  their  country, 
must,  during  every  moment  of  the  voyage,  be  considered  as  either  expressly  or 
impliedly  directing  the  captain  to  conduct  the  ship  to  those  places  only  where 
trade  might  be  carried  on  without  violating  the  laws  of  their  country." 

The  plaintiffs,  therefore,  retained  their  verdict. 

But  where,  in  the  case  of  Boiiomlcy  v.  BovilL  (d)  the  master  is  called  upon 
to  exercise  his  own  discretion,  and  only  errs  in  judgment,  and  not  "ea?  malefi- 
cio,"  it  does  not  amount  to  barratry.  Thus  in  a  case  in  which  the  captain  of 
a  ship  mistook  the  meaning  of  his  instructions,  or  erred  as  to  the  best  mode  of 
carrying  them  into  effect,  it  was  insisted  at  the  trial,  on  behalf  of  the  assured, 
that' the  plaintiff  was  entitled  to  recover  for  a  loss  by  barratry.  Lord  Chief 
Justice  Abbott  told  the  jury  "that  barratry  meant  an  act  of  the  master  in  fraud 
of  his  duty  to  his  owner.  A  mere  mistake  of  the  captain  as  to  the  meaning  of 
his  instructions,  or  a  misapprehension  of  the  best  mode  of  carrying  them  into 
effect,  would  not  amount  to  barratry;  and  he  directed  the  jury  to  find  for  the 
plaintiff,  if  they  were  of  opinion  that  the  captain  acted  in  fraud  of  his  duty  to 
r  *QiQ  1  '^^^  owner,  when  he  went  to  New  Zealand  ^instead  of  the  East 
L  -^  Indies;  but  if  they  thought,  on  the  other  hand,   that  he  merely 

mistook  the  meaning  of  the  instructions,  or  the  best  mode  of  acting  for  the 
purpose  of  carrying  them  into  effect,  then  to  find  for  the  defendant."  Upon 
this  point  the  jury  found  for  the  defendant. 

And  where  in  Todd  v.  Ritchie,  [a)  which  was  an  action  on  a  policy,  the  loss 
was  averred  to  be  by  barratry  of  the  master;  and  it  appeared,  that  the  ship 
having  sprung  a  leak,  he  took  her  into  port,  and,  before  any  survey  made,  he 
broke  up  her  ceiling  and  end-bows  with  ci'owbars,  thereby  injuring  her,  and 
weakening  her;  Lord  Ellenborough,  addressing  the  counsel  for  the  plaintiff, 
said,  "to  constitute  barratry,  which  is  a  crime,  the  captain  must  have  been 
proved  to  have  acted  against  his  better  judgment,  as  the  case  stands  there  is  a 
whole  ocean  between  you  and  barratry." 

In  the  case  of  Goldsmith  v.  JJliitmore,  (b)  it  was  held  that  a  sentence  con- 
demning as  enemy's  property,  a  cargo  which  the  master  had  barratrously 
carried  into  the  enemy's  blockaded  port,  though  he  may  prove  it  to  be  then 
enemy's  property,  does  not  disprove  the  allegation  that  the  cargo  was  lost  by 
the  captain's  barratrous  act. 

In  the  case  of  Vallejo  v.  Tflieeler,  (c)  it  was  setded,  we  recollect,  that  the 
freighter  of  the  ship  is  to  be  considered  as  the  owner  of  it  for  the  particular 
voyage ;  and  it  seems  also  clearly  settled  by  the  same  case,  that  if  an  act  be 
committed  with  the  consent  of  the  owners  of  the  ship,  that  cannot  be  barratry. 
It  was,  however,  in  a  later  case,  insisted  upon  at  the  Bar,  that  an  act  of  the 
captain,  without  tlie  consent  of  the  owners  of  the  goods,  who  were  the  insured, 
though  with  the  consent  of  the  owners  of  the  ship,  was  barratry,  so  as  to 
charge  the  underwriters.  But  tliis  argument  was  overruled  by  the  Court;  and 
could  not  have  been  admitted  without  overturning  all  former  decisions  upon  the 
subject.  Barratry  implies  something  contrary  to  the  duty  of  master  and  mari- 
r  *S40  1  "^'"'''  ^'^  ^^'^  relation  in  which  they  stand  to  the  owners  of  the  *ship  ; 
L  J  and  although  tliey  make  themselves  liable  to  the  owners  of  the 


(fl)   5  B.  &  C.  210.  (n)   1  Stark.  240. 

(Ij)  3  Taunt.  508.  (c)  Ante,  p.  323. 


BARRATRY    OF    THE    MASTER   OR   MARINERS.  187 

goods  for  misconduct,  yet  not  for  barratry,  which  can  be  committed  against  the 
owners  of  the  ship,  and  them  only. 

The  case  in  which  this  point  was  settled,  was  IVuff  and  others^  Assignees^ 
8)'C.  V.  Boui'dieu,  (</)  which  was  an  action  on  a  policy  of  insurance,  made  by 
Hague  before  he  became  a  bankrupt,  on  goods  laden  in  the  ship  Rachette 
(otherwise  the  Bellona)  for  a  voyage  from  London  to  Kochellc,  subscribed  by 
the  defendant  for  120/.  at  1/.  lO*.  per  cent,  premium.  The  cause  was  tried  at 
Guildhall  before  Mr.  Justice  Buller,  when  a  verdict  was  found  for  the  plain- 
tiff, subject  to  the  opinion  of  the  Court  upon  the  following  case:  That  the 
bankrupt  shipped  on  board  the  vessel  in  question  goods  to  the  amount  of 
1,800/.  for  Rochelle.  That  the  captain,  by  the  instigation  and  direction  of 
Messrs.  Le  Grands,  the  owners  of  the  ship,  went  with  the  ship  and  cargo  to 
Bordeaux  instead  of  Rochelle,  where  the  cargo  was  sold  by  the  a^ent  of  Le 
Grands.  That  a  petition  was  presented  by  the  plaintiffs  to  the  lieutenant- 
general  of  the  admiralty  of  Guiennc,  stating  the  whole  of  the  transaction 
between  the  bankrupt  and  the  owners  and  captain :  that  in  oider  to  procure  a 
landing  at  Bordeaux,  their  original  destination  being  to  Rochelle,  false  bills  of 
ladino-  were  made  out  bv  the  captain,  at  the  insticralion  of  Ze  Grand:  the 
petition  concluded  with  a  prayer  for  relief  In  consequence  of  this  petition,  a 
decree  was  passed,  declaring  Rene  Guine.  (captain)  guilty  of  the  crime  of  bar- 
ratry of  the  master,  for  having  signed  false  bills  of  lading,  &c. ,  for  reparation 
whereof,  it  sentenced  him  to  perpetual  service  in  the  gallies.  It  is  also  declared 
Dominique  Le  Grand  guilty,  and  convicted  of  having  been  an  instigator  and 
accomplice  of  the  said  barratry  of  the  master,  and  adjudged  him  to  five  years' 
servitude  in  the  ^allies :  and  also  decreed  that  the  said  Rene  Guine  and  Le 
Grand  should  pay  to  the  plaintiffs  the  amount  of  their  loss,  and  all  charges  and 
*costs.  The  question  on  this  case  is,  whether  the  plaintiffs  were  p  ^„^,  -, 
entided  to  recover  against  the  insurers }     After  the  first  argument,  ^  J 

Lord  Mansfield  said,  "that  Avith  regard  to  the  sentence  which  had  been 
passed  abroad,  and  which  had  declared  the  master  and  owner  to  have  been 
guilty  of  barratry,  it  Avas  entirely  out  of  the  question.  That  though  it  was  a 
most  righteous  judgment,  yet  that  it  was  no  part  of  the  consideration  of  the 
Court  there,  what  was  meant  by  barratry  in  an  English  policy.  The  question 
was  left  entirely  open.  That  their  idea  of  barratry  was  manifestly  different 
from  the  construction  put  upon  that  word  in  our  own  Courts,  for  they  had 
found  the  owner  guilty  of  barratry,  which  was  entirely  repugnant  to  every 
definition  of  barratry,  which  had  ever  been  laid  down  in  an  English  Court  of 
Justice. 

Lord  Mansfield  delivered  the  opinion  of  the  Court,  [a) 

"AU  questions  upon  mercantile  transactions,  but  more  particularly  upon 
policies  of  insurance,  are  extremely  important,  and  ought  to  be  settled.  The 
general  question  here  is  on  the  construction  of  the  word  barratry  in  a  policy  of 
insurance.  It  is  somewhat  extraordinary  that  it  should  have  crept  into  insu- 
rances, and  still  more,  that  it  should  have  continued  in  them  so  long ;  for  the 
underwriter  insures  the  conduct  of  the  captain,  whom  he  does  not  appoint,  and 
cannot  dismiss,  to  the  owner,  who  can  do  either.  (6)  The  point  to  be  consid- 
ered is,  whether  ban'atry,  in  the  sense  in  which  it  is  used  in  our  policies  of 
insurance,  can  be  committed  against  any  but  the  owners  of  the  ship .'  It  is 
clear,  beyond  contradiction,  that  it  cannot ;  for  barratry  is  something  contrary 


(rf)  I  T.  R.  323. 

(a)  The  Court  had  declared  that  a  second  argument  was  unnecessary, 
(i)  See  also  what  Lord  Ellcnborough  says  in  the  previous  case  of  Earle  v.  Rowcroft,  3 
East,  p.  1 33,  and  ante,  p.  334. 


188  BARRATRY    OF    THE    MASTER   OR   MARINERS. 

to  tlie  duty  of  the  master  and  mariners,  the  very  terms  of  which  imply,  that  it 
must  be  in  the  relation  in  which  they  stand  to  the  owners  of  the  ship.  The 
words  used  are  master  and  mariners,  which  are  very  particular.  An  owner 
r  ^QJ.9  1  f'^"'^^^  commit  barratry.  *Hc  may  make  himself  liable  by  his 
L  J  fraudulent  conduct  to  the  owner  of  the  goods,  but  not  as  for  bar- 

ratry. And,  besides,  barratry  cannot  be  committed  against  the  owner  with  his 
consent ;  for  though  the  owner  may  become  liable  for  a  civil  loss  by  the  mis- 
behaviour of  the  captain,  if  he  consents,  yet  that  is  not  barratry.  Barratry 
must  partake  of  something  criminal,  and  must  be  committed  against  the  owner 
by  the  master  or  mariners.  In  the  case  of  Vallejo  and  Wheeler^  the  Court 
took  it  for  granted  that  barratry  could  only  be  committed  against  the  owner  of 
the  ship.     The  point  is  too  clear  to  require  any  further  discussion." 

The  poslea  was  delivered  to  the  defendant. 

It  is  clear,  that  if  the  owner  be  also  the  master  of  the  ship,  any  act,  which 
in  another  master  would  be  construed  barratry,  cannot  be  so  in  him ;  because 
such  doctrine  would  militate  against  one  of  the  rules  laid  down  in  a  former  part 
of  this  section,  namely,  that  no  man  shall  be  allowed  to  derive  a  benefit  from 
his  own  crime,  which  he  would  do,  were  he  to  recover  against  the  insurer 
for  a  loss  occasioned  by  his  own  act.  But  where  the  person,  who  acts  as 
master  of  the  ship,  is  proved  to  have  carried  her  out  of  her  course  for  fraudu- 
lent purposes  of  his  own,  that  is  prima  facie  evidence  of  barratry,  so  as  to 
entitle  the  assured  to  recover  against  the  underwriter,  without  requiring  him  to 
prove  negatively  that  such  captain  was  not  the  owner,  or  shewing  who  really 
was  so.  The  fact  of  his  being  owner  must  be  established  by  the  underwriter, 
in  discharge  of  whom  it  is  to  operate.  («) 

This  rule  respecting  the  same  person  being  both  owner  and  master  has  been 
extended  in  the  Court  of  Chancery  to  a  case  of  Lewen  v.  Stiasso,  (h)  where 
such  an  owner  and  master,  after  mortgaging  his  ship,  had  committed  barratry ; 
and  when  the  mortgagee  brought  an  action  at  law  against  the  insurer  to  recover 
r  *343  1  '^^"^^?'^^  ^°i*  ^^^^  ^^^^  which  he  had  sustained  by  this  *act  of  barra- 
L  J  try,  the  Court  still  considering  the  mortgagor  as  the  owner,  granted 

an  injunction. 

The  facts  of  that  case  were  these.  The  plaintiff  in  equity  having  been  sued 
at  law  upon  a  policy  of  insurance  against  the  barratry  of  the  master,  which 
was  also  the  loss  assigned  in  the  declaration,  brought  his  bill  in  Chancery  to  be 
relieved,  and  for  an  injunction.  The  voyage  insured  was  from  London  to 
Marseilles,  and  from  thence  to  some  port  in  Holland.  The  master  sailed  with 
the  ship  to  Marseilles,  and  then,  instead  of  pursuing  his  voyage,  sailed  to  the 
West  Indies,  where  he  sold  his  ship,  and  died  insolvent  "  The  plaintiff  by 
his  bill  suggested,  that  Matthews,  the  master,  was  also  the  owner  of  the  ship  j 
that  he  had,  before  the  voyage,  entered  into  a  bottomry  bond  to  the  defendant 
for  200/.,  and  afterwards,  by  a  bill  of  sale,  had  assigned  over  his  interest  in  the 
ship  to  the  defendant,  as  a  security  for  the  200/.;  that  Matthews  was,  never- 
theless, in  equity,  to  he  considered  as  owner  of  the  ship,  though  in  law  the 
ownership  and  proi)crty  would  be  looked  upon  to  be  in  the  defendant ;  and  that 
the  owner  of  a  ship  could  not,  either  in  law  or  equitv,  be  guilty  of  a  barratry 
concerning  the  ship  ;  and  therefore  he  prayed  an  iiijunction,''and  that  the  policy 
might  be  delivered  uj).  The  matters  of  fact  being  confessed  by  the  answer, 
an  injunction  was  moved  for  on  the  principle,  that  a  mortgagor  is  to  be  consid- 
ered in  equity  as  the  owner  of  the  thing  mortgaged;  and  that  Matthews,  the 
master,  being  owner,  could  not  be  guilty  of  barratry. 


(a)  Ross  V.  Hunter,  4  T.  R.  33.     See  ante,  p.  330. 

(b)  In  Chancery,  16,  Geo.  2;  Postlcthw.  Diet.  1  vol.  147,  ante,  p.  336. 


BARRATRY  OF  THE  MASTER  OR  MARINERS.  189 

Lord  Hardwicke. — "Barratry  is  an  act  of  wrong  done  by  the  master  against 
the  ship  and  goods ;  and  this  being  the  case  of  a  ship,  the  question  will  be, 
"VVho  is  to  be  considered  as  the  owner?  Several  cases  might  be  put  where 
barratry  may  be  assigned  as  tlie  breach  of  an  insurance,  and  I)arratry  or  not  is 
a  question  properly  determinable  at  law  :  but  in  this  case  it  is  not  so,  for  Courts 
of  Law  will  not  consider  a  mortgagor  as  having  any  right  or  interest  in  the 
thing  mortgaged ;  and  a  man  may  frequently  come  into  equity  for  relief  in 
respect  of  a  part  only  of  his  case.  It  might,  indeed,  be  consid-  ^  ^„ .  .  -, 
cred  *at  law,  whether  what  the  master  has  done,  whether  he  be  L  J 

owner  or  not,  did  not  amount  to  a  breach  of  contract  as  master,  and  so  to  a 
barratry  :  it  may  likewise  be  so  considered  in  this  Court.  But  at  law  a  defend- 
ant cannot  read  part  of  a  plaintiff's  answer  to  a  bill  tiled  against  him  here  :  the 
whole  answer  must  be  read,  which  has  often  been  a  reason  for  this  Court  to 
interpose  by  injunction  upon  a  plaint  at  law;  and  consideriug  the  mixed  nature 
of  this  case,  I  think  an  injunction  ought  to  be  granted." 

And  it  was  decided  in  the  case  of  Havelock  v.  Handily  [a]  that  even  if  the 
parties  insert  in  the  policy  that  the  insurance  shall  be  upon  the  ship  in  any  law- 
ful trade,  if  the  captain  commit  barratry  by  smuggling,  the  underwriters  are 
answerable.  For  otherwise  the  word  barratry  should  be  struck  out  of  the 
policy ;  and  most  clearly  the  stipulation  in  the  policy  respecting  the  employ- 
ment of  the  ship  in  a  lawful  trade,  must  mean,  as  was  said  by  Lord  Kenyan 
in  delivering  the  unanimous  opinion  of  the  Court,  the  trade  on  which  she  is 
sent  by  the  owners. 

A  loss  by  barratry  is  well  alleged,  though  it  be  proved  to  have  happened  by 
the  joint  act  of  an  enemy,  aided  by  some  of  the  crew.  Indeed,  it  should 
seem,  it  would  be  good  also  if  laid  the  other  way;  at  least  Lord  Ellenborough 
allowed  a  plainlifl"  under  similar  circumstances  to  recover,  where  the  loss  was 
laid  to  have  been  by  capture,  {b) 

So  if  a  loss  be  alleged  to  have  happened  by  the  perils  of  the  sea,  it  is  sup- 
ported by  proof  of  the  ship  being  wrecked,  although  this  may  have  been  occa- 
sioned by  the  barratry  of  the  master  and  mariners,  (c) 

Hitherto  we  have  considered  barratry,  only  as  it  affects  the  riglus  of  the 
insurer  and  insured,  which  is  certainly  the  material  point  of  view  in  our  pre- 
sent inquiry :  but  before  we  come  to  the  conclusion  of  this  section,  it  will  be 
proper  to  *take  notice  of  those  positive  regulations,  which  exist  in  p  ^oAr.  n 
this  and  other  countries,   for  the   punishment  of  those  who  are  L  J 

guilty  of  some  of  the  more  heinous  acts  of  barratry. 

L  By  the  ordinances  of  Middleburgh,  Rotterdam,  and  Hamburgh,  if  any 
act  of  barratry  be  committed  by  the  master,  various  degrees  of  punishment, 
sometimes  amounting  even  to  death,  are  inflicted  upon  him,  proportioned  to 
the  enormity  of  his  guilt,  [a) 

2.  Various  en;ictments  have  at  different  periods,  from  the  reign  of  Charles 
the  Second,  been  made  in  this  country  for  the  punishment  of  masters  and 
mariners  in  charge  of  ships,  and  other  persons  wilfully  casting  away,  burning, 
or  otherwise  destroying  such  ship,  {b) 

And  now  by  the  7  &  8  Geo.  4,  c.  30,  s.  10,  it  is  enacted,  "that  if  any 
person  shall  unlawfully  and  maliciously  damage,  otherwise  than  by  fire,  any 


(a)  3  T.  R.  277. 

\b)  Toulmin  v.  Anderson,  1  Taunt.  227.  Hucks  v.  Thornton,  1  Holt,  38.  Arch- 
angel© V.  Thompson,  2  Camp.  620. 

(c)  Heyman  v.  Parish,  2  Camp.  148,  and  see  ante,  p.  285. 

la)  2  Ma?.  77,  112,  215. 

\b)  22  &  23  Car.  2,  c.  11,  s.  12;  1  Anne,  stat.  2,  c.  9,  s.  4 ;  4  Geo.  1,  c.  12,  s.  3  ; 
43  Geo.  3,  c.  113,  «&c. 


190  BARRATRY    OF    THE   MASTER   OR   MARINERS. 

ship  or  vessel,  whether  in  a  complete  or  unfinished  state,  with  intent  to  destroy 
the  same,  or  to  render  the  same  useless,  every  such  offender  shall  be  ^ilty  of 
felony,  and  being  convicted  thereof,  shall  be  liable,  at  the  discretion  of  the 
Court,  to  be  transported  beyond  the  seas  for  the  term  of  seven  years,  or  to  be 
imprisoned  for  any  term  not  exceeding  two  years ;  and  if  a  male,  to  I)e  once, 
twice,  or  thrice  publicly  or  privately  Avhipped.  (if  the  Court  shall  so  think  fit) 
in  addition  to  sucli  punishment.  Other  provisions  on  this  subject,  in  this  sta- 
tute, were  repealed  by  7  Wm.  4,  and  1  Vict.  c.  89,  by  which  it  is  enacted, 
"That  whosoever  shall  unlawfully  and  maliciously  set  fire  to,  cast  away,  or 
in  anywise  destroy  any  ship  or  vessel,  either  with  intent  to  murder  any  person, 
or  whereby  the  life  of  any  person  shall  be  endangered,  shall  be  guilty  of  felony, 
and  being  convicted  shall  sufier  death."  (c) 

^  ~l       '"That  whosoever  shall  unlawfully  exhibit  any  false  light  *or 

L  J  signal,  with  intent  to  bring  any  ship  or  vessel  into  danger,  or  shall 

unlawfully  and  maliciously  do  anything  tending  to  the  immediate  loss  or  de- 
struction of  any  ship  or  vessel  in  distress,  shall  be  guilty  of  felony,  and  being 
convicted  thereof  shall  suffer  death,  (o) 

"That  whosoever  shall  unlawfully  and  maliciously  set  fire  to,  or  in  anywise 
destroy  any  ship  or  vessel,  whether  the  same  be  complete,  or  in  an  unfinished 
state,  or  shall  unlawfully  and  maliciously  set  fire  to,  cast  away,  or  in  anywise 
destroy  any  sliip  or  vessel,  with  intent  thereby  to  prejudice  any  owner  or  part 
owner  of  such  ship  or  vessel,  or  of  any  goods  on  hoard  the  same,  or  any  per- 
son that  hath  underwritten,  or  who  shall  underwrite  any  policy  of  insurance 
upon  such  sliip  or  vessel,  or  on  the  freight  thereof,  or  upon  any  goods  on  board 
the  same,  shall  be  guilty  of  felony,  and  being  convicted  thereof,  shall  be  liable, 
at  the  discretion  of  the  Court,  to  be  transported  beyond  the  seas  for  the  term 
of  the  natural  life  of  such  oflender,  or  for  any  term  not  less  than  fifteen  years, 
or  to  be  imprisoned  for  any  term  not  exceeding  three  years."  (b) 

"That  whosoever  shall  by  force  prevent  or  impede  any  person  endeavouring 
to  save  his  life  from  any  ship  or  vessel  which  shall  be  in  distress,  or  wrecked, 
stranded,  or  cast  on  shore,  (whether  he  shall  be  on  board,  or  shall  have  quitted 
the  same)  shall  be  guilty  of  felony,  and  being  convicted  thereof,  shall  be  liable, 
at  the  discretion  of  the  Court,  to  be  transported  beyond  the  seas,  for  the  term 
of  the  natural  life  of  such  offender,  or  for  any  term  not  less  than  fifteen  years, 
or  to  be  imprisoned  for  any  term  not  exceeding  three  years."  (c)  "That  who- 
soever shall  unlawfully  and  maliciously  destro^y  any  part  of  any  ship  or  vessel 
which  shall  be  in  distress,  or  wrecked,  stranded,  or  cast  ashore,  or  any  goods, 
merchandise,  or  articles  of  any  kind,  belonging  to  such  ship  or  vessel,  shall 
be  guilty  of  felony,  and  being  convicted  thereof,  shall  be  liable,  at  the  discre- 
r  *347  1  ^'^"  of  the  Court,  to  be  *transported  beyond  the  seas,  for  any  term 
^  not  exceeding  fifteen  years,  nor  less  than  ten  years,  or  to  be  im- 

prisoned for  any  term  not  exceeding  three  years."  (a) 

3.  By  the  11  &  12  Wra.  3,  c.  7,  s.  9,  (made  perpetual  by  6  Geo.  1,  c.  19) 
it  is  enacted, 

"That  if  any  commander  or  master  of  any  ship,  or  any  seaman  or  mariner, 
shall  in  any  place,  where  the  admiral  hath  jurisdiction,  betray  his  trust  and 
turn  pirate,  enemy,  or  rebel,  and  piratically  and  feloniously  run  away  with  his 
or  their  ship  or  ships,  or  any  barge,  boat,  or  ordnance,  ammunition,  goods  or 
merchandises^  or  yield  them  up  voluntarily  to  any  pirate,  or  shall  bring  any 
seducing  messages  from  any  pirate,  enemy,  or  rebel,  or  consult,  combine,  or 


(c)  Sect.  4.  (a)  Sect.  5. 

(i)  Sect.  6.  (c)  Sect.  7. 

(«)  Sect.  8. 


OF    ALL    OTHER   PERILS,   LOSSES,  ETC.  191 

confederate  with,  or  attempt  or  endeavour  to  corrupt  any  commander,  master, 
officer,  or  mariner,  to  yield  up,  or  run  away  with  any  ship,  goods,  or  merchan- 
dises, or  turn  pirate,  or  go  over  to  pirates,  or  if  any  person  shall  lay  violent 
hands  on  his  commander,  whereby  to  hinder  him  from  fighting  in  defence  of 
his  ship  and  goods  committed  to  his  trust,  or  shall  confine  his  master,  or  make, 
or  endeavour  to  make  a  revolt  in  the  ship,  shall  be  adjudged,  deemed,  and  taken 
to  be  a  pirate,  felon,  and  robber,  and  being  convicted  thereof,  according  to  the 
directions  of  this  act,  shall  have  and  suffer  pains  of  death,  loss  of  lands,  goods, 
and  chatdes,  as  pirates,  felons,  and  robbers  upon  the  seas  ought  to  have  and 
suffer." 

And  now  by  the  7  Wm.  4,  and  1  Vict.  c.  88,  s.  3,  it  is  enacted,  "That 
persons  convicted  of  any  offence,  which  by  the  acts  referred  to  in  that  section 
amount  to  piracy,  shall  be  liable  to  be  transported  for  life,  or  for  any  term  not 
less  than  fifteen  years,  or  to  be  imprisoned  for  any  term  not  exceeding  three 
years."  (6) 


^SECTION  XIV.  [    *348     ] 

AND    OF    ALL    OTHER   PERILS,   LOSSES,  AND    MISFORTUNES,   THAT   HAVE    OR   SHALL 

COME,"  ETC. 

The  insertion  in  the  policy  of  the  general  words  by  which  the  underwriters 
undertake  upon  themselves  "all  other  perils,  losses,  and  misfortunes,  that  shall 
come  to  the  hurt,  detriment,  or  damage,  of  the  ship  or  goods  in  the  voyage." 
has  the  effect  of  providing  for  any  doubts  which  might  arise  as  to  cases  which 
come  nearly,  but  not  precisely,  under  the  specified  causes  of  loss.  In  Cidlen 
V.  Butler,  (a)  Lord  Ellenborough  says,  "The  extent  and  meaning  of  the  gen- 
eral words  have  not  yet  been  the  immediate  subject  of  any  judicial  construction 
in  our  Courts  of  law.  As  they  must,  however,  be  considered  as  introduced 
into  the  policy  in  furtherance  of  the  objects  of  marine  insurances,  and  may 
have  the  effect  of  extending  a  reasonable  indemnity  to  many  cases  not  distinctly 
covered  by  the  special  words,  they  are  entided  to  be  considered  as  material  and 
operative  words,  and  to  have  due  effect  assigned  to  them  in  the  construction  of 
this  instrument ;  and  which  will  be  done  by  allowing  them  to  comprehend  and 
cover  other  cases  of  marine  damage  of  the  like  kind  with  those  which  are 
specially  enumerated  and  occasioned  by  similar  causes."  Emerigon,  {b)  in 
discussing  the  general  rule,  that  assurers  answer  for  all  loss  and  damages  that 
happen  on  the  sea,  says,  that  it  is  to  prevent  doubts  and  vain  disputes,  that  in 
the  printed  policies  the  following  words  have  been  inserted;  and  then  he 
instances  the  general  words  to  be  found  in  the  policies  of  most  of  the  principal 
ports  on  the  continent:  "All  inconveniences,  perils,  and  cas  forfidts,  (which 
may  be  translated  as  misfortunes,  accidents,  &;c.)  *which  may  p  *q4Q  "i 
happen,"  and  generally  of  "all    perils  and  fortunes  which  may  L  J 

happen  in  what  manner  soever,  and  which  can  be  imagined,"  is  the  provision 
to  be  found  in  the  policies  of  Bordeaux  and  .Antwerp.     Thus  if,  as  in  the  case 


(6)  And  see  the  provisions  of  16  Car.  2,  c.  6,  and  22  &  23  Car.  2,  c.  11,  as  to  the 
offence  of  not  resisting  pirates  and  enemies, 
(a)  5  M.  &  S.  465. 

(6)  In  c.  12,  s.  1,  p.  300,  of  his  Traite  d' Assurances. 
Vol.  VII.— O 


192  OF    ALL    OTHER    PERILS,   LOSSES,   ETC. 

of  Gordon  v.  JRimmington,  {a)  a  ship  be  burnt  to  prevent  her  faW'mfr  into  the 
hands  of  the  enemy,  and  it  be  a  doubt  whether  this  be  a  loss  by  -'fire"  or  by 
"enemies,"  it  combes  at  any  rate  under  the  general  term  of  "all  other  perils" 
expressed  in  the  policy,  and  ought  to  be  protected  by  them :  for  if  it  be  not  a 
loss,  strictly  speaking,  by  "enemies"  or  by  "fire,"  it  is  a  loss  by  a  peril, 
^'■ejusdem  generis.''''  But  diese  general  words  are  to  be  restrained,  in  construc- 
tion, to  perils  of  the  same  kind  with  those  more  particularly  mentioned  in  the 
policy. 

Thus  in  the  case  of  Butler  v.  TFildman,  (b)  which  has  been  before  men- 
tioned, where  the  captain  of  a  Spanish  ship,  in  order  to  prevent  a  quantity  of 
dollars  from  falling  into  the  hands  of  die  enemy  by  whom  he  was  about  to  be 
attacked,  threw  them  into  the  sea,  and  was  immediately  afterwards  captured. 
The  policy  was  in  the  common  form,  and  declared  the  perils  insured  against  to 
be  of  the  "seas,  men-of-war,  enemies,  jettisons,  &c.,  and  of  all  other  perils, 
losses,  and  misfortunes,  that  had  or  should  come  to  the  hurt,"  &c:  it  was 
decided,  diat  if  tliis  was  not  stricdy  speaking  a  loss  by  "jettison,"  it  was  at 
any  rate  something  ejusdem  generis,  and  tlierefore  falls  under  the  general  words 
"all  other  losses  and  misfortunes,"  &c. 

So  also  in  another  recent  case  of  Phillips  and  another  v.  Barber,  (c)  which 
was  an  action  on  a  policy  of  insurance  in  the  usual  form.  For  twelve  months, 
at  sea  and  in  port,  the  loss  averred  was  as  follows:  "that  the  ship  having 
arrived  in  the  harbour  of  St.  John,  in  the  province  of  Neiv  Brunswick,  and 
discharged  her  cargo,  it  became  necessary  to  place  her,  and  she  was  accordingly 
r  *'l"n  1  P^^^^'-^''  ''^  "^  graving  dock,  there  to  *be  repaired,  and  near  to  a  cer- 
L  J  tain  wharf  in  the  graving  dock;  and  that  whilst  she  was  there,  by 

the  violence  of  the  wind  and  the  weather,  she  was  thrown  over  on  her  side, 
whereby  she  struck  the  gi'ound  with  great  violence,  and  was  bilged,"  Sic.  To 
this  the  defendant  demurred  specially.  Mbott,  C.  J. — "I  am  of  opinion  that 
the  plaintiff'  is  entitled  to  recover.  In  this  case  he  has  not  entangled  himself 
with  any  particular  allegation,  but  has  shown  fully  the  manner,  time,  and  place 
of  the  loss.  This,  it  is  to  be  observed,  was  a  policy  upon  the  ship  for  time 
at  sea  and  in  port."  His  Lordship,  after  stating  the  facts,  said,  "Now  I  think 
that  it  is  clearly  alleged,  that  this  was  a  loss  happening  in  port :  and  then  the 
question  will  be,  whether  it  is  a  loss  falling  within  any  of  the  perils  insured 
against.  Now,  the  perils  insured  against  are  'of  the  seas,  men-of-war,  &c., 
and  of  all  other  perils,  losses,  and  misfortunes  that  have  or  shall  come  to  the 
hurt,  detriment,  or  damage  of  the  said  ship.'  These  general  words  are  indeed 
restrained,  in  construction,  to  perils  '■ejusdem  generis'  w'wh  those  specified, 
and  to  fall  widiin  the  general  words  of  the  policy.  There  must,  therefore,  be 
judirment  for  the  plaintiff." 

The  subject  was  very  fully  considered,  and  all  the  cases  on  it  referred  to,  in 
the  recent  and  important  case  of  Devaitx  v.  FJinson.  («)  The  declaration 
averred  that  the  "ship  was  broken,  damaged,  and  destroyed,  and  rendered 
wholly  incapable  of  j)ursuing  the  said  voyage,  by  certain  perds  which  the  said 
assurers,  by  the  said  policy,  did  take  upon  themselves,  to  wit,  by  the  accidental 
breaking  and  giving  way  of  the  tackle  and  supports  whereby  the  said  ship  was 
supported,  in  being  moved  from  a  certain  dock  ;  in  consequence  of  which  break- 
ing and  giving  way,  the  said  ship  struck  violently  against  die  sand,  and  was 
bilged,  broken,  destroyed,  damaged,  and  rendered  incapable  of  pursuing  the 
said  voyage,"  &c.     The  defendants  traversed  the  allegation  "that  the  ship  was 


(a)  1   Camp.  123,  ante,  pp.  269,  282. 

(i)  3  B.  &  A.  398,  ante,  p  285,  where  the  ca.se  is  more  fully  stated. 

(c)  5  B.  &  A.  161.  (a)  7  Scott,  507;  5  B.  N.  C.  519. 


OF    ALL    OTHER    PERILS,   LOSSES,   ETC.  193 

broken,  damaged,  and  destroyed,  and  rendered  incapable  of  pursuing  the  voy- 
age, by  any  perils  which  the  said  assurers  *by  the  said  policy  did  r-  ^  „^.  -, 
take  upon  themselves,"  Lord  Chief  Justice  Tindal,  after  refer-  *-  '  -1 
riuff  to  the  otlier  parts  of  tlie  case,  said,  ••The  point  remaining  to  be  considered 
is,  whether  the  loss  was  occasioned  by  any  of  the  perils  insured  against  by  the 
policy.  It  is  to  1)6  observed  that  the  words  in  the  policy  are  very  large :  the 
policy  not  only  enumerates  'perils  of  the  sea,'  hut  all  other  perils,  losses,  and 
misfortunes  that  had  or  should  come  to  the  hurt,  detriment,  or  damage  of  the 
subject-matter  of  the  insurance ;  and  the  cases  cited  by  the  plaintiff'  of  Car- 
ruthers  v.  Sydebotham,  (o)  Fletcher  v.  Inglis,  (b)  a«d  Phillips  v.  Barber,  (c) 
are  sufficient  to  shew,  that  a  loss  occasioned  by  the  endeavour  to  get  the  vessel 
affoat  from  the  dock  in  which  she  has  just  been  repaired,  was  a  loss  within  the 
policy.  Indeed,  the  difficulty  which  has  arisen  upon  this  point  in  former  cases, 
has  rather  turned  upon  the  question  whether  such  a  loss  was  properly  described 
in  the  declaration  as  a  loss  by  tlie  perils  of  the  sea,  than  to  any  doubt  as  to  its 
falling  within  the  jr-'^neral  terms  of  the  policy ;  and  in  the  present  case  that 
difficulty  is  avoided  by  the  mode  in  which  the  loss  is  described  in  the  declara- 
tion." 

It  may  properly  enough  be  mentioned  under  this  head,  that  if  a  ship  has 
been  missing,  and'  no  intelli<Tence  received  of  her  within  a  reasonable  time  after 
she  sailed,  it  shall  be  presumed  that  she  has  foundered  at  sea. 

And  in  the  case  of  Green  v.  Broicn,  (d)  the  ship  Charming  Peggy  was 
insured  in  1739,  from  North  Carolina  to  London,  with  a  warranty  against 
captures  and  seizures,  and  in  an  action  the  loss  was  laid  in  the  declaration  to 
be  by  sinking  at  sea.  All  the  evidence  given  was,  that  she  sailed  out  of  port 
on  her  intended  voyage,  and  had  never  since  been  heard  of.  Several  witnesses 
proved,  that  in  such  a  case  the  presumption  is,  that  she  perished  at  sea,  all 
other  sorts  of  losses  being  generally  heard  of.  It  was  insisted  for  the  defendant, 
that  as  captures  and  seizures  were  excepted,  it  lay  upon  the  plain-  p  ^^^o  1 
tiff"  *to  prove,   that  the  loss  happened    in  the   particular  manner  ^  J 

declared  on.  But  Lord  Chief  Justice  Lee  said,  "it  would  be  unreasonable  to 
expect  certain  evidence  of  such  a  loss,  where  every  body  on  board  is  presumed 
to  be  drowned :  and  all  that  can  be  required  is  the  best  proof  the  nature  of  the 
case  admits  of,  which  the  plaintiff'  has  given."  He  therefore  left  it  to  the  jury, 
who  found  according  to  the  plaintilT's  declaration. 

The  same  doctrine  was  held  in  a  more  modern  case  of  Nervby  v.  Read,  (a) 
before  Lord  Mansfield.  It  was  an  action  of  covenant  on  a  deed,  in  the  nature 
of  a  policy  of  insurance,  by  which  the  defendant  was  bound  to  insure  against 
any  loss  happening  before  the  30th  of  November,  1762,  free  from  average. 
The  ship  sailed  from  Newcastle  to  Copenhagen,  which  is  usually  about  ten 
days'  voyage.  She  was  soon  after  taken  by  a  French  privateer,  but  ransomed ; 
and  she  then  proceeded  on  her  voyage  to  Copenhagen  (as  was  proved  by  the 
ransomers)  in  a  bad  condition.  She  was  never  heard  of  afterwards,  though  all 
due  diligence  had  been  used ;  and  several  ships,  which  sailed  after  her,  were 
proved  to  have  arrived  safe  at  Copenhagen. 

Lord  Mansfield  told  the  jury,  that  this  evidence  was  a  sufficient  ground  to 
presume  that  she  perished  at  sea,  unless  the  contrary  appeared.  The  jury 
accordingly  found  for  the  plaintiff's. 

So  in  a  recent  case  of  Koster  v.  Reid,  [b)  on  a  policy  on  goods  by  a  certain 
ship,  it  was  proved  that  she  sailed  on  the  voyage  insured  with  the  goods  on 

(a)  4  M.  «&  S.  77.  (h)  2  B.  &  A.  315. 

(c)  5  B.  &  A.  161.  (/)  2  Str.  1199. 

(a)  Sittings  after  Michaelmas,  3  Geo.  3.  Park  Ins.  p.  14S. 

\b)  6  B.  &C.  19. 


194  TOTAL    LOSSES    AND    ABANDONMENT. 

board,  and  never  arrived  at  her  port  of  destination,  and  that  a  few  days  after 
her  departure  a  report  was  heard  at  the  place  whence  slie  sailed  that  she  had 
foundered  at  sea,  but  that  the  crew  were  saved.  The  Court  of  Kind's  Bench 
held  that  this  was  a  sufficient  prima  facie  proof  of  a  loss  by  the  perils  of  the 
sea,  and  that  the  plaintiff  was  not  bound  to  call  any  of  the  crew,  or  to  shew 
that  he  was  unable  to  procure  their  attendance. 

1  *The  late  Mr.  J.  Park.,  in  his  Treatise,  remarks,  (a)  that  he  has 
|_  6b6  J  j^^^  \)QQYi  able  to  find  any  regulation  in  the  law  of  England,  or  the 
usage  of  merchants,  fixing  a  limited  time,  within  which  the  assured  may 
demand  payment  for  his  loss,  in  case  no  accounts  arrive  of  the  ship  upon  which 
insurance  is  made.  Indeed,  from  the  nature  of  the  thing,  what  shall  be  a  rea- 
sonable time  in  such  cases,  must  always  depend  upon  a  variety  of  obvious 
circumstances.  He  says  "he  understands,  however,  a  practice  has  prevailed 
among  insurers,  which  seems  reasonable  enough,  that  a  ship  shall  be  deemed 
lost  if  not  heard  of  in  six  months  after  her  departure  (or  after  the  time  of  the 
last  intelligence  from  her)  for  any  part  of  Europe,  and  in  twelve  months  if  for 
a  greater  distance.  The  only  objection  to  such  a  practice  is,  that  the  latter 
period  does  not  seem  sufficient  in  India  voyages.  However,  that  is  a  matter 
for  the  insurer's  consideration ;  and  even  if  he  should  pay  the  money  \mder  a 
mistake,  supposing  the  ship  lost  when  it  really  is  not,  he  might,  as  we  shall  see 
hereafter,  if  the  insured  were  unwilling  to  refund,  recover  it  back,  in  an  action 
for  money  had  and  received  to  his  use." 

In  Spain  and  France,  this  matter,  however,  is  not  left  to  uncertainty,"  but 
the  time,  within  which  such  losses  may  be  demanded,  is  fixed  and  ascertained 
by  express  regulations.  By  the  ordinances  of  the  former,  if  any  ship  insured 
on  going  to,  or  coming  from  the  Indies,  is  not  lieard  of  in  a  year  and  a  half 
after  her  departure  from  the  port  where  she  loaded,  it  is  declared  that  she  is, 
and  shall  be  deemed  lost,  [b)  by  those  of  the  latter  it  is  said,  that  if  the  insured 
receive  no  news  of  his  ship,  he  may,  at  the  expiration  of  a  year  for  common 
voyages,  reckoning  from  the  day  of  the  departure,  and  after  two  years  for  those 
at  a  greater  distance,  make  his  cession  to  the  underwriters,  and  demand  pay- 
ment, without  being  obliged  to  produce  any  certificate  of  the  loss,  (c) 


[    *354    ]  ^SECTION  XV. 

TOTAL    LOSSES    AND    ABANDONMENT. 

"And  in  case  of  any  loss  or  misfortune,  it  shall  be  lawful,  &c." 
The  part  of  the  policy  at  which  we  are  now  arrived,  is  that  in  which,  under 
the  terms  introduced  by  it,  viz: — "any  loss"  or  "misfortune,"  we  necessarily 
have  brought  under  our  consideration,  in  the  first  place,  the  most  important  dis- 
tinction of  the  different  descriptions  of  losses,  both  with  regard  to  their  charac- 
ter, their  amount,  and  the  effect  which  they  have  respectively,  at  the  time  of 
their  happening,  upon  the  contract  between  the  assured  and  the  assurers.  The 
principal  distinction  which  we  shall  find  it  will  be  necessary  to  draw  between 
these  losses,  mentioned  in  the  policy,  is  that  which  makes  the  essential  differ- 


(a)  Park  Ins.  p.  149.  (i)  2  Magens,  33. 

(c)  2  Magens,  177;  Ord.  of  Lewis,  XIV.,  s.  31,  art.  58.  See  also  in  the  judgment  of 
Lord  Abinger,  Roux  v.  Salvador,  4  Scott,  p.  29,  the  rules  mentioned  by  Straccha,  of  the 
"  Rota  of  Genoa"  on  this  point,  post,  p.  362. 


TOTAL    LOSSES    AND    ABANDONMENT.  195 

dice  between  a  total,  and  what  is  termed  an  average  loss  :  keeping  in  mind  that 
the   "average"  here  mentioned  lias  nothing  to  do  with  "general  average." 
We  see  from  the  remaining  words  of  this  sentence,  "that  in  case  of  any  loss 
or  misfortune  it  shall   be  lawful  for  the  assured,   their  factors,  servants  and 
assigns  to  sue,  labor,  and  travel  for,  in  and  about  the  defence,  safeguard,  and 
recovery  of  the  said  goods  and  merchandises,  and  ship,  &c.,  or  any  part  thereof, 
without  prejudice  to  this  insurance,  to  the  charges  whereof  we  the  assurers  will 
contribute,  each  one  according  to  the  rate  of  quantity  of  his  sum  herein  assured." 
We  shall,  according  to  this  clause  of  the  policy,  have  occasion  to  consider  in 
what  cases  the  assured  can  with  advantage,  and  ought  for  the  benefit  of  all  to 
exert  themselves,  through  their  master  or  agents,  on  any  loss  that  may  arise 
during  the  voyage  insured ;  and  in  what  cases  it  is  allowed  to  the  assured  by 
law,  and  by  the  usage  and  custom  of  merchants,  to  abandon  the  adventure  and 
the  property  insured  into  the  hands  of  the  ^underwriters,  who  have  r-    ^ggg    -, 
taken  upon  themselves  the  responsibility  of  saving  the  assured  L 
harmless  from  those  perils  and  risks  specified  in  the  policy,  and  subscribed  by 
them.     I  have  stated  that  the  main  distinction  between  the  character  and  the 
amount  of  the  losses  is  usually  drawn,  between  what  are  total  losses,  and  such 
as  are  only  in  their  nature  average  losses.     It  shall  be  our  present  object  to 
discuss  the  law  and  practice  on  each  of  these  descriptions  of  losses  in  their 
turn,  and  first,  we  will  consider  the  law  relating  to  total  losses  j  this  will  also 
include  the  question  of  the  law  of  abandonment. 

The  real  character  and  nature  between  an  average  and  a  total  loss  on  goods, 
and  the  doctrine  and  nature  of  abandonment  have  undergone  lately  so  thorough 
an  examination  and  sifting,  in  a  case  which  was  a  writ  of  error,  upon  a  judg- 
ment of  the  Court  of  Common  Pleas;  and  the  subject  which  is  now  about  to 
claim  our  attention,  is  so  ably  handled  by  Lord  Abinger,  who  delivered  the 
judgment  of  the  Court  of  Error,  that  I  think  we  shall  more  readily  understand 
the  principles  laid  down  in  the  earlier  cases  on  this  subject,  when  we  have  had 
the  benefit  of  the  light  which  has  been  cast  upon  the  subject  in  this  important 
judgment.  The  facts  of  the  case,  in  order  to  render  the  doctrine  and  the  prin- 
cipfes  laid  down  upon  this  subject  intelligible,  will  sufficiently  appear  from  the 
judgment  as  now  delivered  by  Lord  Minger,  C.  B.  "This  was  a  writ  of 
error,  upon  a  judgment  of  the  Court  of  Common  Pleas,  in  a  case  of  Boux 
V.  Salvador,  («)  in  an  action  on  a  policy  of  insurance,  upon  '  goods  by  the 
Foxalane,  at  and  from  any  ports  or  places  in  South  America,  to  a  port  in 
France,  or  the  United  Kingdom,'  with  various  liberties  not  material  to  be 
mentioned." 

By  a  memorandum  written  at  the  foot  of  the  policy,  the  insurance  was 
declared  to  be  on  hides,  "shipped  at  Valparaiso,''  free  of  average  unless  the 
ship  were  stranded ;  and  in  case  of  average  loss,  the  underwriters  were  to  pay 
the  expense  of  washing  and  drying  in  full.  The  declaration  *con-  p  #355  "1 
tains  the  usual  averments,  and  states  that  the  hides  were  shipped  L 
at  Valparaiso ;  that  the  vessel  set  sail  with  them  on  board  for  Bordeaux,  a 
port  in  France,  and  that  in  the  course  of  the  voyage  the  hides  became  lost  by 
the  perils  of  the  sea,  and  never  arrived  at  Bordeaux.  The  plea  is  the  general 
issue. 

It  appears  by  the  record,  that  the  cause  was  tried,  and  a  special  verdict 
found,  which,  after  stating  the  facts  necessary  to  support  those  parts  of  the 
declaration  upon  which  no  question  arises,  sets  forth  the  loss  in  substance  as 
follows :— that  the  hides  of  the  value  of  1,000/.  having  been  shipped  in  the 
vessel,  she  set  sail  on  her  voyage ;  in  the  progress  of  which  she  encountered 


(a)   1  Scott,  491;  1  B.  N.  C.  536. 


196  TOTAL    LOSSES    AND   ABANDONMENT. 

perils  of  the  sea  and  sprung  a  leak,  in  consequence  of  which  she  was  compelled 
to  put  into  Rio  de  Janeiro,  being  the  nearest  port;  that  her  cargo  was  taken 
out,  and  landed,  when  it  was  found,  as  the  fact  was,  that  the  hides  were 
damaged  by  the  perils  of  the  sea;  that  by  reason  of  their  being  wetted  by  the 
water  issuing  through  the  leak,  and  of  the  consequent  dampness  of  the  hold, 
they  were  undergoing  a  process  of  fermentation  which  could  not  be  checked ; 
that  in  consequence  of, their  progressive  putrefaction,  it  was  impossible  to  carry 
them,  or  any  part  of  them,  in  a  saleable  state,  to  the  termination  of  the  voyage; 
and  that  if  it  had  been  attempted  to  take  them  to  Bordeaux,  they  would,  by 
reason  of  the  putrefaction,  have  lost  the  character  ol'  hides  before  tlieir  arrival. 
The  special  verdict  further  states,  that  the  hides  were  in  consequence  sold  at 
Rio  de  Janeiro,  by  order  of  the  French  consul  there,  for  the  sum  of  270/.  ; 
that  they  were  purchased  to  be  tanned,  and  Averc  afterwards  tanned.  'J''he 
judgment  is  entered  up  for  the  defendant :  to  set  aside  which,  this  writ  of  error 
is  brought.  It  appears,  from  the  report  of  the  judgment  of  the  Court  of  Com- 
mon Pleas  upon  this  case,  that  the  learned  Judges  were  of  opinion,  that  there 
was  a  constructive  loss  in  this  case,  if  it  hud  been  followed  by  an  abandonment 
to  the  underwriters,  and  that  their  judgment  for  the  defendant  was  founded  upon 
p  *qK7  -|  the  want  of  such  abandonment.  It  has  been  urged  before  *us  in 
L  -'  support  of  the  judgment,  first,  that  there  was  no  total  loss  :  secondly, 

that  if  there  were  any  circumstances  which  might  make  the  loss  amount  to  more 
than  an  average  loss,  they  were  not  such  as,  without  an  abandonment,  could 
have  been  converted  into  a  total  loss. 

The  interest  which  the  assured  may  have  in  certain  cases  to  convert  an 
average  loss  into  a  total  loss,  may  be  fair  argument  to  a  jury,  upon  a  doubtful 
question  of  fact  as  to  the  nature  of  the  loss,  or  the  motive  of  abandonment; 
and  in  the  same  view  that  interest  has  been  adverted  to  by  Judges,  where 
the  conclusions  to  be  drawn  from  facts  upon  a  special  case,  or  upon  a  motion 
for  a  new  trial,  were  open  to  discussion.  But  is  neither  authority  nor  prin- 
ciple for  the  distinction  in  point  of  law  :  whether  a  loss  be  total  or  average  in 
its  nature,  must  depend  upon  general  principles.  The  memorandum  does  not 
vary  the  rules  upon  which  a  loss  shall  be  average  or  total ;  it  does  no  more 
than  preclude  the  indemnity  for  an  ascertained  average  loss,  except  on  certain 
conditions.  It  has  no  aj^plication  whatever  to  a  total  loss,  or  to  the  principles 
on  which  a  total  loss  is  to  be  ascertained. 

Dismissing-  this  distinction,  then,  the  argument  rests  upon  the  position,  that 
if  at  the  termination  of  the  risk,  the  goods  remain  in  specie,  however  damaged, 
there  is  not  a  total  loss.  Now,  this  position  may  be  just,  if  by  the  "  termi- 
nation of  the  risk,"  is  meant  the  arrival  of  the  goods  at  their  place  of  destination 
according  to  the  terms  of  the  policy.  But  there  is  a  fallacy  in  applying  those 
words  to  the  termination  of  the  adventure,  before  that  period,  by  a  perifof  the 
sea.  The  object  of  the  policy  is  to  obtain  an  indemnity  for  any  loss  the 
assured  may  sustain  by  the  goods  being  prevented  by  the  perils  of  the  seas 
from  arriving  in  safety  at  their  place  of  destination.  If,  by  reason  of  the  perils 
insured  against,  the  goods  do  not  so  arrive,  the  risk  may  m  one  sense  be  said 
to  have  terminated  at  the  moment  when  the  goods  are  finally  separated  from 
the  vessel.  Whether,  upon  such  an  event,  the  loss  is  total  or  average,  no 
doubt,  depends  upon  circumstances.  But  the  existence  of  the  goods,  or  any 
r  *358  1  P^^^  ^^  *them,  in  specie,  is  neither  a  conclusive,  nor  in  many 
-■  cases  a  material  circumstance  to  that  question.  If  the  goods  are 
of  an  imperishable  nature,  if  the  assured  become  possessed  of  or  can  have  the 
control  of  them,  if  they  still  have  an  opportunity  of  sending  them  to  their 
destination,  tlie  mere  retardation  of  their  arrival  at  their  original  port  may  be 
oi  no  prejudice  to  them,  beyond  the  expense  of  reshipment  m  another  vessel. 
In  such  a  case,  the  loss  can  be  but  an  average  loss,  and  must  be  so  deemed, 


TOTAL    LOSSES    AND    ABANDONMENT.  197 

even  though  the  assured  for  some  real  or  supposed  advantage  to  themselves, 
elect  to  sell  the  goods  where  they  have  heen  landed,  instead  of  taking  measures 
to  transmit  them  to  their  original  destination.  But  if  the  goods,  once  damaged 
by  the  perils  of  the  sea,  and  necessarily  landed  before  the  termination  of  the 
voyage,  are,  by  reason  of  that  damage  in  such  a  state,  though  tlie  species  be 
not  utterly  destroyed,  that  they  cannot  with  safety  be  reshipped  into  the  same 
or  any  other  vessel ;  if  that  before  the  termination  of  the  original  voyage  the 
species  itself  would  disappear,  and  the  goods  assume  a  new  form,  losing  all 
their  original  character  ;  if  though  imperishable,  they  are  in  the  hands  of 
strangers,  not  under  the  control  of  the  assured ;  if  by  any  circumstance  over 
which  he  has  no  control,  they  can  never,  or  within  no  assignable  period,  be 
brought  to  their  original  destination  ;  in  any  of  these  cases,  the  circumstance 
of  their  existing  in  specie  at  that  forced  determination  of  the  risk  is  of  no  im- 
portance. The  loss  is,  in  its  nature,  total  to  him  who  has  no  means  of  recov- 
ering his  goods,  whether  his  inability  arises  from  their  annihilation,  or  from 
any  other  insuperable  obstacle.  Accordingly,  in  the  case  of  Hunt  v.  Royal 
Exchange  Assurance,  (d)  the  'judgment  of  hovd  Ellenborough  contains  a  very 
important  passage,  which  distinguishes  it  from  the  present  case.  He  says, 
"If,  indeed,  the  cargo  had  been  of  a  perishable  nature,  this  would  not  have 
been  a  case  of  retardation  only,  but  destruction  of  the  thing  assured."  And 
further,  he  says,  "  I  cannot  necessarily  *infer  that  the  flour  would  r-  sqcq  n 
be  changed  in  quality  and  condition  by  the  delay,  from  November  L  -' 

to  April,  so  to  incur  any  material  damage  operating  a  destruction  of  the  thing 
insured." 

In  the  case  of  Anderson  v.  Wallis,  (a)  which  has  also  been  relied  on,  the 
goods  consisted  of  coppex-,  which  was  wholly  uninjured,  and  of  iron,  which 
was  partially  damaged  5  the  assured  by  their  own  agent  had  possession  of  them  ; 
the  ship  was  capable  of  repair,  and  might  have  prosecuted  the  voyage,  and 
did,  in  four  weeks  after  the  accident  sail  upon  another  voyage  ;  the  only  pre- 
tence for  a  total  loss  was  the  retardation  of  the  voyage ;  upon  which  ground, 
combined  with  other  circumstances,  the  Court  held  the  loss  not  to  be  total. 
But  it  is  clear,  from  the  judgment  of  the  Court,  that  if  by  reasons  of  the  perils 
of  the  sea,  the  goods  could  never  have  been  sent  to  their  destination,  the  loss 
would  liave  been  held  to  be  total.  In  like  manner,  it  will  be  found  in  the  other 
cases  cited  upon  this  part  of  the  argument,  that  there  has  always  existed  one 
or  more  other  circumstances  in  combination  with  that  of  the  goods  existing 
in  specie,  to  induce  the  judgment  that  the  loss  was  not  total:  as  in  Glennie  v. 
Royal  Exchange  Assurance  Company,  (b)  the  rice  had  arrived  at  its  port  of 
destination,  and  though  damaged,  was  delivered  to  the  consignees,  and  in  a 
saleable  state  as  rice. 

In  Thompson  v.  Royal  Exchange  Assurance  Company,  [c]  the  tobacco  and 
sugar,  though  damaged  by  the  perils  of  the  sea,  were  in  the  hands  of  the  owner 
at  Heligoland ;  and,  as  stated  by  Lord  Ellenborough  in  his  judgment,  might 
for  anything  that  appeared,  have  been  forwarded  to  their  port  of  destination. 

In  Anderson  v.  Roycd  Exchange  Assurance  Company,  {d)  the  wheat  was 
partly  saved,  was  in  the  hands  of  the  shipper  at  Watcrford,  was  kilndried, 
and  might  have  been  forwarded,  as  the  rest  of  the  cargo  was  after  the  same 
operation,  to  its  port  of  destination  ;  but  the  owner,  after  dealing  with  it  as 
*some  lime  as  is  own,  abandoned  it  too  late,  even  if  he  had  a  right  r-  *qpA  -1 
to  abandon  it  all.  L  J 


{d)  .5  M.  &  S.  47.  (ff)  2  M.  &  S.   240. 

\b)  2  M.  &  S.  371.  (c)   16  East,  214. 

\d)  7  East,  38. 


198  TOTAL   LOSSES    AND    ABANDONMENT. 

In  the  case  before  us,  the  jury  have  found  that  the  hides  were  so  far  damaged 
by  a  peril  of  the  sea  that  they  never  could  have  arrived  in  the  form  of  hides. 
By  the  process  of  fermentation  and  putrefaction  which  had  commenced,  a  total 
destruction  of  them,  before  their  arrival  at  their  port  of  destination,  became 
inevitable,  as  if  they  had  been  cast  into  the  sea,  or  consumed  by  fire.  Their 
destruction  not  being  consummated  at  the  time  they  were  taken  out  of  the 
vessel,  they  became  in  that  state  a  salvage  for  the  benefit  of  the  party  vi^ho  was 
to  sustain  the  loss,  and  were  accordingly  sold  ;  and  the  facts  of  the  loss  and 
the  sale  were  made  known  at  the  same  time  to  the  assured.  Neither  he  nor 
the  underwriters  could  at  that  time  exercise  any  control  over  them,  or  by  any 
interference  alter  the  consequences.  It  appears  to  us,  therefore,  that  this  is 
not  the  case  of  what  has  been  called  a  constructive  loss,  but  an  absolute  total 
loss  of  the  goods  :  they  could  never  arrive,  and  at  the  same  moment  when  the 
intelligence  of  the  loss  arrived  all  speculation  was  at  an  end. 

It  has  indeed  been  strenuously  contended  before  us,  that  the  sale  of  the  hides, 
whilst  they  remained  in  specie,  rendered  abandonment  necessary  to  make  the 
loss  total ;  that  the  money  produced  at  the  sale  became  vested  in  the  assured  ; 
that  he  had  an  undoubted  right  to  keep  it,  if  he  thought  proper,  and  to  treat 
the  loss  as  an  average  one ;  and  that,  wherever  it  is  in  his  power  to  treat  the 
loss  as  an  average  one,  an  abandonment  is  necessary  to  make  it  a  total  loss. 
The  assured  has  certainly  always  an  option  to  claim  or  not,  but  his  abstaining 
from  his  right  does  not  alter  the  nature  of  it;  and  if  it  be  true  that  the  proceeds 
of  the  sale  vested  in  him,  they  would  equally  have  done  so,  if,  instead  of  being 
sold  in  specie,  the  hides  had  actually  changed  their  form,  and  had  been  sold  as 
glue,  or  manure,  or  ashes.  The  argument,  therefore,  in  efl^ect,  resolves  itself 
into  this  question,  whether,  when  a  total  loss  has  taken  place  before  the  termi- 
r  *^fi1  1  '1^^^^'^  °^  ^^^^  insured  voyage,  with  a  salvage  of  some  portion  of 
L      *  -^  *the  subject  insured  which  has  been  converted  into  money,  the 

assured  is  bound  to  abandon,  before  he  recovers  for  a  total  loss?  If  any  doubt 
should  exist  upon  this  point,  it  is  important  that  it  should  be  well  considered 
and  determined. 

The  history  of  our  own  laws  furnishes  few,  if  any,  illustrations  of  the  sub- 
ject of  abandonment,  before  the  time  of  Lord  Mansfield.  That  great  Judge 
was  obliged  to  resort  to  the  aid  of  foreign  codes,  and  to  the  opinions  of  foreign 
jurists,  for  the  rules  and  principles  which  he  laid  down  in  the  leading  cases  of 
Goss  V.  fnihers,  («)  and  Hamilton  v.  Mendez.  (J))  But  even  these  principles 
are,  comparatively  speaking,  of  modern  date.  The  most  ancient  codes  of  the 
law  maritime,  when  it  was  considered  as  part  of  the  law  of  nations,  contain 
no  chapter  upon  assurance,  neither  do  the  earliest  municipal  codes,  nor  the 
earliest  treatises  upon  assurances,  make  any  mention  of  abandonment.  When 
a  policy  of  assurance  was  considered  in  the  nature  of  a  wager,  it  was  needless 
to  treat  of  abandonment. 

The  code  of  Florence^  which  bears  date  1523,  contains  no  allusion  to  that 
topic.  The  decisions  of  the  Rota  of  Genoa,  at  the  time  that  state  was  most 
eminent  for  its  naval  power  and  commercial  enterprise,  have  been  preserved  by 
Straccha.  Amongst  them  are  found  many  cases  of  assurance  upon  sea  risks : 
not  one  of  them  contains  any  questions  about  abandonment  The  same  author 
has  written  a  very  elaborate  treatise  upon  assurances,  but  is  equally  silent  on 
the  subject  of  al)andonmcnt.  He  has  preserved  in  his  treatise  the  form  of  a 
policy,  bearing  date  at  Jlncona,  Oct.  20,  1567 :  from  the  terms  of  that  policy 
it  is  (lifncult  to  infer  any  right  or  duty  of  abandonment;  it  contains  this  clause  : 
"Et  .si  delle  mercantie  assecurate  intervenisse  o  fosse  intervenuto  alcun  disastro 


(«)  2  Burr.  683.  (6)   1  W.  Black.  276. 


TOTAL    LOSSES    AND    ABANDONMENT.  199 

li  assecuratorj  debbono  dare  et  pagare  quelli  danari  assecurati  al  detto  assecurato 
fra  misi  due  dal  di  clie  in  Ancona  ne  fosse  vera  nueva.  Et  si  pretendissero 
per  rairione  alcuna  dire  incontrario  non  possono  esser  iiditi  *da  j-  *qeo  -i 
corte,  guidice,  o  magritrato  aleuno,  si  prima  non  averanno  pagati  L  -■ 

effectualmente  clanari  contanti."  So  that  not  only  two  months  after  the  cre- 
dible news  of  any  disaster  was  the  underwriter  bound  to  pay  a  total  loss,  but, 
if  ho  meant  to  contest  the  claim,  he  was  within  that  time  to  purchase  the  right 
of  litigation  by  first  paying  the  sum  insured.  It  was,  however,  to  be  restored 
to  him  in  the  event  of  his  success.  There  is  also  a  clause  in  the  policy,  by 
which,  if  there  was  no  account  of  the  ship  for  twelve  months,  the  underwriter 
was  bound  to  pay  at  the  end  of  that  time,  sulijcct  to  restitution,  if  the  ship 
should  afterwards  arrive :  a  provision  wholly  inconsistent  with  any  notion  of 
abandonment.  The  same  law  probably  prevailed  at  that  period  throughout  the 
states  of  Italy. 

But  when  assurances  came  to  be  considered  as  contracts  of  indemnity,  and 
not  as  mere  wagers,  it  became  necessary  to  make  some  rules  for  the  conduct  of 
the  parties  where  the  loss  was  average,  as  well  as  to  secure  to  the  assured, 
when  it  was  total,  the  full  measure  of  his  indemnity,  and  no  more.  The  obli- 
gation of  abandonment  was  the  necessary  consequence  of  confining  the  object 
of  the  contract  to  a  strict  indemnity.  Accordingly  we  find  in  the  chapter  of 
Assurances  in  the  civil  statutes  of  Genoa,  in  1010,  the  disaster  upon  which 
the  underwriter  is  bound  to  pay  is  limited  and  defined  to  be  the  incapacity  of 
the  ship  to  proceed  within  a  month  after  she  had  been  disabled,  or  the  deten- 
tion of  her  by  force,  and  the  compulsory  dereliction  of  her  voyage,  whereby 
she  is  forced  to  land  the  goods  insured. 

In  those  cases  the  assured  may  either  abandon  the  goods,  and  demand  the 
full  insurance,  or  make  up  the  amount  of  the  loss  and  demand  from  the  under- 
writers, who,  if  it  amount  to  50  per  cent.,  shall  have  their  option  either  to 
pay  that  sum  and  leave  the  goods  to  the  assured,  or  to  pay  the  whole  and  take 
the  goods.  By  the  same  law  waorer  policies  are  prohibited  and  declared  void. 
Here  it  is  clear  that  the  object  of  the  law  was  to  limit  the  claim  of  the  assured 
to  a  strict  indemnity.  The  same  principle  will  be  found  in  the  p  sqco  -i 
various  *codes  of  the  other  maritime  states  of  Europe,  in  which  *-  '      ^ 

abandonment  is  mentioned ;  though  it  must  be  admitted  that  the  rules  they 
have  respectively  adopted  are  very  diflerent.  In  some  abandonment  is  merely 
permissive,  and  limited  to  very  few  cases.  In  others,  as  in  the  codes  of  Rot- 
terdam and  Amsterdam,  abandonment  was  imperative  even  in  the  case  of  an 
absolute  total  loss.  Such  seems  to  have  been  the  law  of  France,  as  established 
by  the  ordinances  of  Louis  XIV.,  in  1081.  From  the  words  of  that  code, 
indeed,  it  might  be  thought  that  they  were  only  intended  to  prohibit  in  all  but 
the  specified  cases,  and  not  to  enforce  it  as  a  preliminary  condition  for  recov- 
ering an  absolute  total  loss: — "  Ne  pouvra  le  delaissement  etre  fait  qu'en  cas 
de  prise,  naufrage,  bris,  echoument,  arret  de  prince,  en  perte  entiere  des  effets 
assurees  :  et  tons  autre  dommages  ne  seront  reputes  q'avaries." 

Emerigon,  in  his  Treatise  des  Assitrances,  c.  17,  s.  1,  remarks,  that  aban- 
donment presents  to  the  mind  the  idea  of  a  thing  existing  in  whole  or  in  part, 
or  at  least  the  idea  of  a  doubtful  existence ;  for  it  appears  absurd  to  renounce 
to  the  assurers  a  thing  of  which  the  absolute  loss  is  already  established.  Never- 
theless, he  says,  "According  to  our  maritime  laws,  we  may  abandon  to  the 
underwriters  a  thing  entirely  lost,  and,  however  singular  it  may  appear,  the  law 
requires  the  form  of  an  abandonment  in  the  process  of  an  action  de  delaisse- 
ment, though  it  be  stated  that  the  goods  have  actually  ceased  to  exist."  This 
apparent  inconsistency  in  the  laAv  of  France  is  now  removed  by  the  Code  de 
Napoleon.  Under  the  title  "/?<<  Delaissement,^''  in  the  Code  de  Commerce, 
there  are  seven  cases  enumerated  in  which  abandonment  is  permitted,  amongst 


200  TOTAL    LOSSES    A.ND    ABANDONMENT. 

which  the  "perte  entiere  des  efTets  assurees,"  is  not  to  be  found.  There  is, 
indeed,  a  power  given  to  abandon  in  case  the  loss  or  damage  of  the  goods 
amounts  to  three-fourths  ?  but  the  necessity  of  an  abandonment  seems  to  be 
guarded  against  expressly  by  the  article  372,  which  provides,  "that  the  aban- 
donment shall  extend  to' nothing  but  those  effects  which  are  the  object  of  the 
-,  assurance  and  of  the  risk."  But,  whatever  lights  might  -^have 
[  ^364  J  i^^gj^  heretofore  derived  from  foreign  codes  and  jurists,  the  practice 
of  insurance  in  England  has  been  so  extensive,  and  the  questions  arising  upon 
every  branch  of  it  so  thoroughly  considered  and  settled,  that  we  need  not  now 
look  Ijeyond  the  authorities  of  die  English  law  to  illustrate  the  principle  on 
which  the  doctrine  of  abandonment  rests,  and  the  consequences  which  result 
from  it.  It  is,  indeed,  satisfactory  to  know  that  however  the  laws  of  foreign 
states  upon  this  subject  may  vary  from  each  otlier  or  from  our  own,  they  are 
all  directed  to  the  common  object  of  making  the  contract  of  insurance  a  con- 
tract of  indemnity,  and  nothing  more.  Upon  that  principle  is  founded  the 
whole  doctrine  of  abandonment  in  our  law. 

The  underwriter  eno-ages  that  the  object  of  the  assurance  shall  arrive  in  safety 
at  its  destined  termination.  If  in  the  progress  of  the  voyage  it  becomes  totally 
destroyed  or  annihilated,  or  if  it  be  placed  by  one  of  the  perils  he  insures 
against,  in  such  a  position,  that  it  is  wholly  out  of  the  power  of  the  assured 
or  the  underwriter  to  procure  its  arrival,  he  is  bound  by  the  very  letter  of  his 
contract  to  pay  the  sum  insured.  But  there  are  intermediate  cases.  There 
may  be  a  capture,  which,  though  prima  faciei  a  total  loss,  may  be  followed 
by  "a  recapture,  which  M-ould  revest  the  property  in  the  assured.  There  may 
be  a  forcible  detention,  which  may  speedily  terminate,  or  may  last  so  long  as 
to  end  in  the  impossibility  of  bringing  the  ship  or  the  goods  to  their  destination. 
There  may  be  some  other  peril  wiiich  renders  the  ship  unnavigable  without 
any  reasonable  hope  of  repair,  or  by  which  the  goods  are  pardy  lost,  or  so 
damaged  as  they  are  not  worth  the  expense  of  bringing  home.  In  all  these  or 
any  similar  cases — if  a  prudent  man  not  insured,  would  decline  any  further 
expense  in  prosecuting  an  adventure,  the  termination  of  which  will  probably 
never  be  successfully  accomplished ;  a  party  insured  may,  for  his  own  benefit, 
as  well  as  for  diat  of  the  underwriter,  treat  the  case  as  one  of  a  total  loss,  and 
demand  the  full  sum  insured.  But  if  he  elects  to  do  this,  as  die  thing  insured, 
r  *'ifi'i  -1  or  a  portion  of  it,  still  exists,  *and  is  vested  in  him,  the  very  prin- 
L  J  ciple  of  the  indemnity  requires  that  he  should  make  a  cession  of 

all  his  right  to  the  recovery  of  it,  and  that  too,  within  a  reasonable  time  after 
he  receives  intellijjence  of  the  accident,  that  the  underwriter  mav  be  entiUed  to 
all  benefit  of  what  stUl  may  be  of  any  value.  In  all  these  cases,  not  only  the 
thing  assured,  or  part  of  it,  is  supposed  to  exist  in  specie ;  but  there  is  a  pos- 
sibiHly,  however  remote,  of  its  arriving  at  its  destination,  or  at  least  of  its 
value  being  affected  by  the  measures  that  may  be  adopted  for  the  recovery  or 
preservation  of  it.  If  the  assured  prefers  the  chance  of  any  advantage  that 
may  result  to  him  beyond  die  value  insured,  he  is  at  liberty  to  do  so;  but  then 
lie  must  also  abide  the  risk  of  the  arrival  of  the  thing  insured,  in  such  a  state 
as  to  entide  him  to  no  more  than  an  average  loss.  If,  in  the  event,  the  loss 
should  become  absolute,  the  underwriter  is  not  less  liable  upon  liis  contract, 
because  the  assured  has  used  his  own  exertions  to  preserve  the  diing  insured, 
or  has  postponed  his  claim  till  that  event  of  a  total  loss  has  become  certain, 
which  was  uncertain  before.  In  the  languacre  of  Lord  EUcnhorough  in  the 
case  of  Mdlisli  v.  Jlndrcws,  (a)  "It  is  an  established  and  familiar  rule  of 
insurance,  that  when  the  thing  insured  subsists  in  specie,  and  there  is  a  chance 

(«)  15  East,  13. 


TOTAL    LOSSES    AND    ABANDONMENT.  201 

of  its  recovery,  there  must  be  an  abandonment.  A  party  is  not  in  any  case 
oblifjed  to  abandon,  neither  will  the  want  of  abandonmont  onsl  iiim  of  his  daim 
for  tliat  which  is  in  fixct  an  average  or  total  loss,  as  the  case  may  be."  Ag^ain, 
in  Mullet  V.  Shfddon,  (n)  the  same  h^irned  .Tiidfire  says: — "If.  instead  of  the 
saltpetre  having  been  taken  ont  oi"  the  ship  and  sold,  and  the  {)r(>perty  divested, 
and  the  subject-matter  lost  to  the  owner,  it  had  remained  on  board  the  ship, 
and  been  restored  at  last  to  the  owner,  I  should  have  thoiifrht  that  there  was 
much  in  the  argnment,  that  in  order  to  make  it  a  total  loss  there  should  have 
been  notice  of  abandonment,  and  that  such  notice  should  have  been  given 
sooner;  but  here  the  property  itself  was  entirely  lost  to  the  owner,  and  the 
^necessity  of  any  abandonment  was  altogether  done  away."  In  p  *'iff'  "i 
that  case  the  sentence  under  which  the  sale  was  made  had  been  L  -^ 

reversed,  and  the  proceeds  directed  to  be  paid  to  the  owner,  so  that  there  was 
a  substitution  of  money  for  a  portion  at  least  of  the  matter  insured. 

Both  these  cases  are  direct  aulhoriticy  to  show  that  no  abandonment  is  neces- 
sary "where  there  is  a  total  loss  of  the  subject-matter  insured."  His  Lord- 
ship referred  to  cases  of  equal  authority  with  the  preceding,  (which  will  deserve 
a  more  particular  notice  by  us  in  this  section)  and  to  an  important  ease  of 
Cambridge  v.  Anderion,  [b]  and  said  "this  last  is  in  all  points  similar  to  the 
present,  and  is  an  express  decision,  that  when  the  subject-matter  insured  has, 
by  a  peril  of  the  sea,  lost  its  form  and  specie,  where  a  ship,  for  example,  has 
become  a  wreck,  or  a  mere  congeries  of  planks,  and  has  been  bona  fide  sold 
in  that  state  for  a  sum  of  money — the  assured  may  recover  a  total  loss  without 
an  abandonment.  In  fact,  when  such  a  sale  takes  place,  and  in  the  opinion  of 
the  jury,  is  justified  by  necessity,  and  a  due  regard  to  the  interest  of  all  par- 
ties, it  is  made  for  the  benefit  of  the  party  who  is  to  sustain  the  loss;  and  if 
there  be  an  insurance,  the  net  amount  of  the  sale  becomes  money,  had  and 
received  to  the  use  of  the  underwriter,  upon  payment  by  him  of  the  total  loss. 
It  may  be  proper  to  mention,  however,  that  the  assured  may  preclude  himself 
from  recovering  a  total  loss,  if,  by  any  view  to  his  own  interest  he  voluntarily 
does  or  permits  to  be  done,  any  act  whereby  the  interests  of  the  underwriters 
may  be  prejudiced  in  the  recovery  of  that  money.  Suppose,  for  example,  that 
the  money  received  upon  the  sale  should  be  greater  than,  or  equal  to  the  sum 
insured,  if  the  assured  allows  it  to  remain  in  the  hands  of  his  agent,  or  of  the 
party  making  the  sale,  and  treats  it  as  his  own,  he  must  take  upon  himself  the 
consequence  of  any  subsequent  loss  that  may  arise  of  that  money,  and  cannot 
throw  upon  the  underwriter  a  peril  of  that  nature.  This  is  the  true  principle 
of  the  case  of  Mitchell  *v.  Ed'ie^  (c)  whicli  was  cited  as  an  author-  p  ^^^^  -, 
ity  for  the  decision  of  the  Court  of  Common  Pleas.     There  the  L  J 

insurance  was  upon  sugar  "from  Jamaica  to  London.''''  The  ship  had  been 
captured  bv  a  privateer,  deprived  of  some  of  her  crew  and  a  portion  of  lier 
stores — then  released,  and  carried  by  the  remainder  of  the  crew  into  Charles- 
town,  where  she  arrived  on  the  18th  February,  1782.  Tiie  report  does  not 
state  when  the  intelligence  of  this  reached  London,  but  it  is  ])robable  that  it 
must  have  reached  the  assured  before  the  month  of  June  following.  One  of 
the  owners  of  the  ship  was  resident  at  Charlestown;  he  took  possession  of 
lier;  and  instead  of  despatching  her  on  the  original  voyage,  he  sold  the  cargo 
of  sugar  in  the  month  of  June.,  and  sent  the  ship  on  another  voyage.  He  had 
been  connected  with  the  assured  in  former  adventiires.  He  retained  the  n)oney 
in  his  hands,  and  came  to  England  in  June,  1783.  The  assured  pressed  him 
for  payment  of  the  money,  but  took  no  steps  to  recover  it;  he  became  insolvent 


(ffl)   13  East,  304.  {h)  2  B.  &  C.  697. 

(c)   1  T.  R.  008. 


202  TOTAL    LOSSES   AND    ABANDONMENT. 

the  following  year:  no  claim  was  made  upon  the  underwriter  till  after  this 
event ;  and  then,  after  the  expiration  of  three  years,  from  the  alleged  loss  of 
the  goods,  notice  of  abandonment  was  given  and  the  action  brought :  upon 
which  the  defendant  paid  into  Court  sufficient  to  cover  a  general  average,  and 
pleaded  the  general  issue.  The  Court  gave  judgment  against  the  plaintiff, 
stating  that  he  had  abandoned  too  late.  And  it  cannot  be  disputed,  that,  if  ever 
he  liad  any  colour  for  claiming  a  total  loss,  it  must  have  been  upon  an  abandon- 
ment before  he  heard  of  the  sale,  as  he  afterwards  gave  credit  to  his  agent  for 
the  money,  and  elected  to  treat  it  as  his  own,  till  the  event  of  an  insolvency 
Avhich  prevented  tlie  underwriter  from  recovering  it.  But,  in  fact,  there  never 
was  a  total  loss  by  peril  of  the  sea.  The  sugars  were  safe  at  Charlestown, 
and  the  sale  by  the  owner  of  the  ship  was  not  a  loss  by  a  peril  insured  against. 
The  secret  of  the  conduct  of  tlic  assured  may  be  discovered  by  a  reference  to 
r  -QR«  -,  the  dates  and  the  circumstance  of  the  time.  *During  the  war  with 
■-  -•  America,  and  especially  towards  the  close  of  it,  the  intercourse 

between  that  country  and  tlie  JVest  India  islands  was  much  interrupted ;  and 
the  price  of  colonial  produce  was  higher  in  Charlestoivn  than  in  London.  It 
was  therefore  probably  his  interest  to  give  up  his  claim  upon  the  underwriters, 
and  adopt  the  sale.  If,  therefore,  the  sale  of  the  goods  could  have  been  treated 
as  a  loss,  the  conduct  of  the  assured  had  either  deprived  him  of  the  right  to 
claim  it,  or  made  him  liable  if  lie  had  die  right  to  account  to  the  underwriters 
for  the  amount  of  the  sale.  If,  indeed,  the  Court  must  have  treated  the  sale 
at  Charlestown  as  a  loss,  for  which  the  underwriter  was  at  any  time  responsi- 
ble, the  case  may  be  an  authority  for  establishing  the  principle,  that,  even 
when  a  total  loss  has  occurred  by  a  sale  of  the  goods,  the  assured  may,  by  his 
own  conduct,  in  electing  to  take  the  proceeds,  instead  of  making  his  claim  upon 
the  underwriters — if  he  thereby  alters  the  position  of  the  facts,  so  as  to  affect 
the  interest  of  the  underwriter,  forfeit  his  claim  to  recover  a  total  loss.  But 
the  case  is  in  no  view  an  authority  for  the  judgment  of  the  Court  of  Common 
Pleas,  which  for  these  reasons,  we  think,  ought  to  be  reversed." — Judgment 
reversed, 

I  shall  now  proceed  to  consider  the  earlier  cases  upon  this  subject,  and 
endeavour  to  show  how  the  law  of  abandonment  as  setded  at  tliis  day,  accord- 
ing to  the  important  judgment  we  have  just  referred  to,  may  be  seen  to  have 
regularly  proceeded  from  diose  first  principles  which  were  laid  down  chiefly 
by  Lord  Manfijield.  I  shall  commence  by  going  back  to  the  important  case  of 
Goss  V.  Withers,  [ci)  which  we  dwelt  on  for  so  long  a  time  in  the  section  on 
capture,  [b) 

■  It  will  not  be  necessary  to  go  over  the  ground  we  traversed  before,  respect- 
ing the  effect  of  capture  upon  the  contract  of  insurance.  It  is  as  well  briefly 
to  state  what  the  case  was.     The  case  stated  that  the  ship  departed  from  her 

r  *369  1  P''°P'^''  P'^'"^'  *^"^^  '^^^^  taken  by  the  French,  on  the  23rd  of  Decem- 
'-  -'  her,  1756:  and  that  the  master,  mates,  and  all  the  sailors,  (except 

an  apprentice,  and  landsman)  were  taken  out  and  carried  to  France.  That  the 
ship  remained  in  the  hands  of  the  enemy  eight  days,  and  was  then  retaken  by 
an  English  privateer,  and  brought  in,  on  the  18th  of  January,  to  Milford 
Haven;  and  that  immediate  notice  was  given  by  the  assured  to  tlie  assurers, 
witli  an  offer  to  abandon  the  ship  to  their  care.  Several  questions  arising  upon 
the  first  cause,  it  was  agreed  that  the  jury  should  bring  in  their  verdict  in  both 
causes  for  the  plaintiffs  as  for  a  total  loss,  suliject,  however,  to  the  opinion  of 
the  (yourt  on  two  questions,  the  second  of  which  is  now  to  be  the  subject  of 
our  consideration  (the  first  having  been  already  disposed  of). 


(a)  2  Burr.  683.  (fi)  See  ante,  sec.  xii,  p.  287. 


TOTAL    LOSSES    AND    ABANDONMENT.  203 

The  second  question  is  this: — "Wliother,  under  the  several  circumstances 
of  this  case,  tlie  assured  liad  or  had  not  a  rit^lit  to  abandon  the  ship  to  the 
assurers,  after  she  was  carried  into  Milford  Haven?'''' 

It  was  argued  by  counsel  for  the  plaintifi's,  ''that  the  assured  had  a  right  to 
abandon  the  ship  to  the  assurors,  after  iier  coming  into  Milford  Haven.  For 
the  property  insured  was  irrecoverably  destroyed.  And  here  was  immediate 
notice  of  abandoning  to  the  assurers  given."  They  quoted  MoUoy,  i^a)  and 
Mahjne''s  ^^ Lex  Mercatoria..^''  {b)  for  the  rules  of  abandoning.  Malipie  puts 
it,  "where  there  is  no  possibility  of  putting  to  sea  with  the  thing  insured." 
Here  the  ship  was  freighted  with  a  "perishable"  commodity,  (fish  from  Netv- 
foicndland)  bound  to  hot  countries ;  was  taken:  and  afterwards  retaken  and 
brought  into  Milford  Haven  wiUiout  sufficient  hands  of  lier  own,  and  requiring 
so  much  refitment  as  was  impossible  to  be  finished  before  the  cargo  would  and 
must  be  spoiled;  and  part  of  the  cargo  was  thrown  overboard,  too,  in  the 
storm,  before  she  was  taken.  To  what  purpose,  then,  should  the  assured  be 
at  the  expense  of  refitting  the  ship,  to  carry  a  "spoiled  and  useless"  cargo .^ 

*Little  is  to  be  found  in  the  books  about  abandoning.  The  rule  p  *q7n  -i 
laid  down  was,  "That  the  assured  has  a  right  to  abandon  to  the  L  -' 

assurers  where  there  are  no  hopes  of  saving  the  perishable  cargo,  (a)  provided 
there  is  no  fraud." 

This  ship  was  in  port;  tlie  hands  all  in  France.,  in  prison.  Besides,  here 
was  a  total  loss ;  for  the  costs  of  salvage  exceeded  the  value  of  the  thing  saved. 
Therefore  they  had  a  right  to  abandon. 

The  counsel  for  the  defendant  argued  that  the  case  stated  did  not  entitle  the 
assured  to  abandon.  This  right  to  abandon  supposes  a  total  loss ;  but  the  loss 
was  only  average.  As  to  Molloy  and  Malyncs,,  they  said  almost  anything 
might  be  proved  from  their  writings. 

It  has  been  urGfcd,  "that  the  assured  can  in  no  case  abandon."  On  the  con- 
trary, all  provincial  laws  allow  the  power  of  abandoning  in  some  cases,  [h) 

Lord  Mansfield  delivered  the  judgment  of  the  Court  on  the  23rd  of  Novem- 
ber, 1758. 

"The  single  question,  therefore,  upon  which  this  case  turns  is,  'Whether 
the  assured  had  under  the  circumstances,  upon  the  18th  of  January,  1757,  an 
election  to  abandon?' 

"The  loss  and  disability  was  in  its  nature  total,  at  the  time  it  happened. 
During  eight  days  the  plaintiffs  were  certainly  entided  to  be  paid  by  the  as- 
surers as  for  a  total  loss :  and,  in  case  of  a  recapture,  the  assurer  would  have 
stood  in  his  place.  The  subsequent  recapture  is,  at  best,  a  saving  only  of  a 
small  part :  half  of  the  value  must  be  paid  for  salvage.  The  disability  to  pur- 
sue the  voyage  still  continued.  The  master  and  mariners  were  prisoners.  The 
charter-party  was  dissolved.  The  freight  (except  in  proportion  to  the  goods 
saved  was)  lost.  The  ship  was  necessarily  brought  into  an  English  port. 
What  could  be  saved  might  not  be  worth  the  expense  attending  it,  (which  is 
proved  by  the  plaintiffs'  offer  *to  abandon.)  The  subsequent  tide  r-  ^„_,.  -, 
to  restitution  arising  from  the  recapture,  at  a  great  expense,  of  the  L  J 

ship,  disabled  to  pursue  her  voyage,  cannot  take  away  a  right  vested  in  the 
assured  at  the  time  of  the  capture.  But,  because  he  cannot  recover  more  than 
he  has  suffered,  he  must  abandon  what  may  be  saved.  The  better  opinion  of 
the  book  says, — 'Sufficitsemel  extitisse  conditionem,  ad  beneficium  assecurati, 


(fl)   Lib.  2,  c.  7,  p.  278.  (i)   Pp.  Ill,  115. 

(a)  See  ante,  p.  364,  and  Roux  v.  Salvador,  4  Scott,  p.  25. 

(A)  Lord  Mansfield  here  observed,  "It  goes  so  far  back  as  the  Rhodian  law,  and  the  laws 
of  Oleron."     2  Burr.  692. 


204  TOTAL    LOSSES    AND    ABANDONMENT. 

de  amissione  navis ;  etiam  quod  postea  sequeretur  recuperalio :  nam  per  talem 
recuperationem  non  potuit  praejudicari  assecurato.'  I  cannot  iind  a  single  book, 
ancient  or  modern,  Avhich  does  not  say,  '  that,  in  case  of  the  ship  being  taken, 
the  assured  may  demand  as  for  a  total  loss,  and  abandon.'  And  wliat  ])roves 
the  proposition  most  strongly  is,  that,  by  the  general  law,  he  may  abandon  in 
the  case  merely  of  an  arrest  or  an  embargo,  by  a  prince  not  an  enemy.  Every 
argument  holds  stronger  in  the  case  of  the  other  policy  Avith  regard  to  the  goods. 
The  cargo  was,  in  its  nature,  perishal)le ;  (d)  destined  from  Newfoundland  to 
Spain  or  Portugal;  and  the  voyage  as  absolutely  defeated  as  if  the  ship  had 
been  wrecked,  and  a  third  or  a  fourth  of  the  goods  saved.  No  capture  by  the 
enemv,  though  condemned,  can  be  so  total  a  loss  as  to  leave  no  possibility  of 
recovery.  If  the  owner  should  take  at  any  time,  he  will  be  entitled  ;  and  by 
the  act  of  Parliament,  if  an  English  ship  retakes  at  any  time  (before  condem- 
nation or  after,)  the  owner  is  entided  to  restitution,  upon  stated  salvage.  This 
chance  does  not  suspend  the  demand  for  a  total  loss  upon  the  assurer;  but 
justice  is  done  by  putting  him  in  the  place  of  the  assured,  in  case  of  a  recapture. 

'•In  questions  upon  policies,  the  nature  of  the  contract  as  an  indemnity,  and 
nothing  else,  is  always  liberally  considered.  There  might  be  circumstances 
under  which  capture  would  be  ])ut  a  small  temporary  hindrance  to  the  voyage — 
perhaps  none  at  all :  as  if  a  ship  was  taken,  and  in  a  day  or  two  escaped  entire, 
and  pursued  her  voyage. 

r    ^Q79     1      *'•  There  are  circumstances,  under  which  it  would  be  deemed 
L      *  J  an  average  loss :  if  a  ship  taken,  is  immediately  ransomed  by  the 

master,  and  pursues  her  voyage,  there  the  money  paid  is  an  average  loss.     And 
in  all  cases  the  assured  may  elect  'not  to  abandon.' 

"In  the  second  part  of  '■^  Usage  and  Customs  of  the  Sea,^  a  treatise  is 
inserted  called  ^  Guidon,^  where,  after  mentioning  the  right  of  abandonment 
upon  a  capture,  he  adds,  'or  any  other  such  disturbance  as  defeats  the  voyage, 
or  makes  it  not  worth  while,  or  worth  the  freight  to  pursue  it. ' 

"I  know  that  iu  late  times,  the  privilege  of  abandoning  has  been  restrained 
for  fear  of  letting  in  frauds :  and  the  merchant  cannot  elect  to  turn,  what  at  the 
time  when  it  happened,  was  in  its  nature  («)  but  an  average,  into  a  total  loss  by 
abandoning.  But  there  was  no  danger  of  fraud  in  this  case.  The  loss  was 
total  at  die  time  that  it  happened.  It  continued  total,  as  to  the  destruction  of 
the  voyage.  A  recovery  of  any  thing  could  be  had,  only  upon  paying  more 
than  half  the  value  (including  the  costs.)  What  could  be  saved  of  the  goods, 
miglit  not  have  been  worth  the  freight  for  so  much  of  the  voyage  as  they  had 
gone  when  they  were  taken.  The  cargo,  from  its  nature,  must  have  been  sold 
where  it  was  brought  in.  {b)  The  loss,  as  to  the  ship,  could  not  be  better 
estimated,  nor  the  half  of  the  salvage  be  fixed  by  a  better  measure  than  a  sale. 
In  such  a  case,  there  is  no  colour  to  say  that  the  insured  might  not  disentangle 
himself  from  unprofitable  trouble,  and  further  expense;  and  leave  the  assurer 
to  save  what  he  could.  It  might  as  reasonably  be  argued,  that  if  a  ship  sunk, 
was  weighed  up  again  at  great  expense,  the  crew  having  perished,  the  assured 
could  not  abandon  nor  the  assurer  be  liable,  because  the  ship  was  saved. 

"We  are,  therefore,  of  opinion,  that  the  loss  was  total,  by  the  capture;  and 
r  *'i7'>  "1  ^''<'  right  which  tlie  owner  had,  after  the  ^voyage  was  defeated  to 
L  -'  obtain  restitution  of  die  ship  and  cargo,  paying  great  salvage  to  the 

recaptor,  'might  he  abandoned  to  the  assurers,  after  she  was  brought  into  Mil- 
ford  Haven.''  "     The  postea  was  given  to  the  plaintifls  in  both  cases. 


(d)  See  ante,  p.  360,  and  Roux  v.  Salvador,  4  Scott,  p.  25. 
(rt)  Sec  the  case  of  Mitchell  v.  Edic,  1  T.  K.  COS,  ante,  p.  367. 
(i)  Sec  the  case  of  Koux  v.  Salvador,  4  Scott,  p.  26. 


TOTAL    LOSSES    AND    AnANDONMENT.  205 

There  is  a  case  of /*rin^/c  v.  Hartley,  («)  ia  Chaiicory,  whicli  is  applicable 
to  the  preceding  case.  Tlie  derouclant  had  insured  the  ship  Success  from  Lon- 
don to  Bernnulas,  and  so  to  Carolina;  the  ship  was  taken  by  a  Spanish  ]ni- 
vateer,  and  afterwards  retaken  by  an  English  privateer,  and  carried  into  Boston 
in  New  England,  where,  no  person  appearing  to  give  security,  or  to  answer 
the  moiety,  "the  recaptors  were  entitled  to  for  salvage,  she  was  condemned  and 
sold  in  the  Court  of  Admiralty  there  :  the  recaptors  had  their  moiety,  and  the 
overplus  money  remained  in  the  hands  of  the  oflicers  of  that  ('ourt.  An  action 
upon  the  policy  was  brought  at  law  by  the  defendant  here,  who  o!)tained  a  ver- 
dict against  the  now  plaint ilT. 

The  plaintiff  brought  a  bill,  suggesting  the  capture  to  be  fraudulent,  and  done 
designedly  by  the  captain ;  and  now  moved  for  an  injunction  to  stay  the  pro- 
ceedings at  law. 

It  was  contended  for  the  plaintifT,  that  though  the  capture  miglit  not  be  fraudu- 
lent, yet  the  defendant  ought  not  to  recover  more  on  the  policy  than  a  moiety 
of  the  loss,  as  the  act  of  the  13  Geo.  2,  c.  4,  3.  18,  gives  the  thing  saved  to 
the  owner,  and  he  is  entitled  to  receive  it  from  the  officers  of  the  Admiralty : 
and  that  the  plaintiff  ought  to  be  obliged  to  pay  no  more  than  the  loss  actually 
sustained,  which  cannot  be  ascertained  till  after  the  defendant  shall  have  received 
the  part  that  might  have  come  to  him  upon  the  salvage. 

The  defendant  in  his  answer  had  sworn,  that  he  had  offered,  and  was  now 
willing  to  relinquish  his  interest  to  tlie  plaintiifs  in  the  benefit  of  the  salvage, 
and  would  give  them  a  letter  of  attorney  for  that  purpose  to  receive  it. 

Lord  Chancellor  Hardwickc. — "There  is  no  ground  for  *an  p  ^yjA  "i 
injunction  in  this  case;  here  there  was  an  agreement  to  go  to  trial  L  -j 

in  one  of  these  actions,  which  had  been  brought,  and  to  be  bound  by  the  event 
of  that :  at  the  time  of  the  trial,  they  knew  that  the  ship  was  retaken,  and  the 
manner  of  the  capture.  The  quantum  of  the  damage  and  loss  sustained  is  the 
only  thing  now  to  be  disputed ;  for  it  is  impossible  to  carry  on  trade  without 
insuring,  especially  in  time  of  war.  Therefore  regard  must  be  had  to  the 
insured,  as  well  as  to  the  insurer;  and  where  there  is  no  admission  in  the 
answer  of  any  kind  of  fraud,  though  various  pretences  of  that  sort  may  be  set 
up  by  the  bill,  they  are  not  to  be  regarded.  The  question  then  arises  on  the 
statute  of  13  Geo.  2,  with  regard  to  the  salvage.  It  has  been  said,  there  ought 
to  be  only  half  the  loss  recovered  in  the  policy ;  and  as  to  that,  the  act  has 
made  great  alteration  in  the  law  of  nations  with  respect  to  recaptures.  The 
carrying  a  ship  infra  prsesidia  hostium,  or  si  pernoctaverit  with  the  enemy, 
makes  it  the  prize  of  the  person  retaking  it,  as  if  it  had  been  originally  the  ship 
of  the  enemy :  but  by  the  act,  the  recaption  is  the  revesting  of  the  property  of 
the  owner.  If  there  is  a  salvage,  that  must  be  deducted  out  of  the  money 
recovered  by  the  policy ;  but  if  none  has  come  to  the  hands  of  the  plaintiff  in 
the  action,  the  jury  cannot  take  notice  of  it.  The  ship  was  condemned  and 
sold,  because  the  money  was  not  paid,  or  secured  to  be  paid  by  the  owners. 
It  is  uncertain  whether  the  defendant  will  receive  any  thing  or  not;  and  if  any 
thing  be  recovered,  he  must  have  an  allowance  for  his  expenses  in  recovering. 
Therefore  I  take  it,  when  he  is  willing  to  relinquish  his  interest  in  the  salvage, 
he  ought  to  recover  the  whole  money  insured.  It  would  be  mischevious  if  it 
were  otherwise,  for  then  upon  a  recapture  a  man  would  be  in  a  worse  situation 
than  if  the  ship  were  totally  lost."     Injunction  was  denied. 

'i'he  case  of  3Iilles  v.  Fletcher,  {b)  is  a  most  important  case,  which  is  par- 
ticularly illustrative  of  the  principles  which  we  are  now  treating. 


(a)  In  Chan.  1744.     3  Atk.  195.  (6)  Doug.  2.31. 


206  TOTAL    LOSSES    AND    ABANDONMENT. 

[-  S07-  -|  *The  case  was  this  : — It  was  an  action  on  a  policy  of  insurance, 
L  ^ '  ^  J  on  the  ship,  The  Hope,  and  her  freight,  from  Moniserrat  to  Lon- 
don. The  plaintiff  went  for  a  total  loss :  the  defendant  insisted,  that  he  was 
only  entitled  to  recover  for  an  average  loss.  The  jury  found  a  verdict  for  a 
total  loss ;  and  upon  a  motion  for  a  new  trial,  the  facts  of  the  case  appeared  to 
be  as  follows: — The  ship,  when  proceeding  on  her  voyage,  was  captured  on 
the  23rd  of  May.  by  two  ..American  privateers,  who  took  the  captain  and  all 
the  crew,  and  part  of  the  cargo,  which  consisted  of  sugars,  out  of  her.  The 
rigging  was  also  taken  away.  She  was  afterwards  retaken,  and  carried  into 
New  Fork,  where  the  captain  arrived  on  the  23rd  of  June,  and,  taking  posses- 
sion of  her,  found  that  part  of  what  had  been  left  of  the  cargo  was  washed 
overboard,  that  fifty- seven  hogsheads  of  what  remained  were  damaged,  and  that 
the  ship  was  leaky,  and  in  such  a  state,  that  she  could  not  be  repaired  without 
unloading  her  entirely.  The  owners  had  no  storehouses  in  New  Fork,  in  which 
the  sugars  could  have  been  put,  while  the  ship  was  repairing,  nor  any  agent 
there  to  advise  or  direct  the  captain.  No  sailors  were  to  be  had.  The  only 
method  he  had  of  paying  the  salvage,  which  amounted  to  the  value  of  forty 
hogsheads  of  sugar,  was  by  sale  of  part  of  the  cargo,  or  the  ship.  The  cap- 
tain did  not  know  of  the  insurance.  If  he  had  repaired  the  ship,  his  expenses 
would  have  exceeded  tlie  freight  more  than  100/.  There  was  an  embargo  on 
all  vessels  at  Neiv  Fork  till  the  27th  of  December;  and  by  the  destination  of 
his  ship,  she  was  to  have  arrived  at  London  in  July.  Under  these  circum- 
stances, he  consulted  with  his  friends  at  Neio  Fork,  and  resolved,  upon  their 
opinion  and  liis  own,  to  sell  the  ship  and  cargo,  as  the  most  prudent  step  for 
the  interest  of  his  employers.  The  cargo  was  accordingly  sold  and  paid  for. 
The  ship  was  also  contracted  for,  but  the  person  who  had  agreed  to  buy  her 
ran  away,  and  the  captain  left  her  in  a  creek  near  Neic  Fork,  and  returned  to 
England,  where  he  arrived  in  the  February  following,  and  gave  the  plaintiff 
notice  of  what  had  been  done,  which  was  the  first  information  he  received  of 
r  *376  1  *'^'  ^^^^  ^^^^  plaintiff  immediately  claimed  as  for  a  total  loss  from 
L  J  the  underwriters,  and  offered  to  abandon.     Lord  Mansfield  told 

the  jury,  that  if  they  were  satisfied  the  captain  liad  done  what  was  best  for 
the  benefit  of  all  concerned,  they  must  find  as  for  a  total  loss,  which  they 
accordingly  did. 

Upon  the  motion  for  a  new  trial,  the  unanimous  opinion  of  the  Court  was 
delivered  by 

Lord  Mansfield. — "The  great  object  in  every  branch  of  the  law,  but  espe- 
cially in  mercantile  law,  is  certainty,  and  that  the  grounds  of  decision  should 
be  precisely  known.  I  took  great  pains  in  dehvering  the  opinion  of  the  Court 
in  the  case  of  Goss  v.  Withers,  and  Hamilton  v.  3Iendez.  I  read  both  those 
cases  over  last  night,  and  I  think  that  from  them,  the  whole  law  between 
insurers  and  insured,  as  to  the  consequences  of  capture  and  recapture,  may  be 
collected.  It  was  not  contended  that  a  capture  necessaidy  amounts  to  a  total 
loss  between  insurer  and  insured ;  nor,  on  the  other  hand,  that  on  a  capture  and 
recapture,  there  may  not  be  a  total  loss,  though  there  remain  some  material 
tangible  part  of  the  ship  and  cargo.  Neither  was  it  contended  that  the  captain 
has  an  arbitrary  power,  by  his  act,  to  make  the  loss,  either  average  or  total, 
as  he  pleases.  A  great  deal  has  been  said  about  what  the  Admiralty  could,  or 
would  have  done,  in  such  a  case,  in  order  to  pay  the  salvage.  As  to  that,  if 
no  owner  appeared,  they  would  condemn  the  whole;  but  if  they  saw,  from 
the  ship's  papers,  that  there  was  one,  they  would  not.  If  there  were  different 
claimants  of  the  ship  and  cargo,  they  would  leave  it  to  them  to  say  what  part 
should  be  sold :  and  if  they  differed  in  opinion,  would  order  the  sale  of  such 
part  as  would  be  attended  with  the  smallest  loss.  But  all  that  is  foreign  to  the 
present  question,  which  is  singly  this,  whether  the  consequences  of  the  capture 


TOTAL    LOSSES    AND    ABANDONMENT.  207 

were  such  as,  notwilhstanding  the  recapture,  occasioned  a  total  obstruction  of 
the  voyaj^e,  or  only  an  average  one,  as  in  the  case  of  Hamilton  v.  Mendez? 
In  that  case,  and  in  Gosfi  v.  nifhers,  ^reat  stress  was  laid  on  the  situation  of 
the  ship  and  cargo,  at  llie  time  when  the  insured  had  notice,  at  the  time  of  tlie 
offer  to  abandon,  *and  at  the  time  when  the  action  was  brought.  ^  ^077  -1 
No  cases  say  tliat  tlie  bare  existence  of  tlie  hull  of  the  ship  pre-  L  J 

vents  the  loss  being  total.  The  rule  is  laid  down,  "that  if  the  voyage  be  lost, 
or  not  worth  pursuing,  if  the  salvage  be  high,  if  furtlier  expense  be  necessary, 
if  the  insurer  will  not  at  all  events  undertake  to  pay  that  expense,  &c.,  the 
insured  may  abandon,  notwithstanding  a  recapture,"  Here,  at  the  time  of  the 
capture,  there  were  no  hopes  of  a  recovery  .;  no  friend's  sliip  in  siglit;  no  means 
of  resistance ;  all  the  crew  were  taken  out,  and  part  of  the  cargo ;  and  the 
rigging  also  taken  away.  Afterwards  the  ship  was  retaken,  and  carried  into 
New  York.  When  she  was  brought  there,  it  still  continued  a  total  loss.  Nei- 
ther the  insurers,  nor  the  insured,  had  any  agent  in  the  place.  The  Court  of 
Admiralty  must  have  proceeded  secundum  ;equm  et  honum,  and  might  have 
sold  her  for  the  benefit  of  those  concerned.  When  the  insured  first  had  notice, 
and  offered  to  abandon,  (which  was  when  the  captain  came  to  England,)  and 
when  the  action  was  brouglit,  it  was  still  a  total  loss.  The  voyage  was  aban- 
doned, the  cargo  sold,  and  the  ship  left  to  be  sold.  The  only  answer  the 
defendant  makes,  or  can  make  to  this  is,  that  the  loss  was  total  indeed ;  but 
that  the  captain  made  it  so,  by  his  improper  conduct;  for  that  on  his  taking 
possession  of  the  ship,  the  loss  became  average,  and  that  he  ought  to  have 
pursued  the  voyage.  But  is  this  defence  true  in  fact?  The  captain,  when  he 
came  to  New  York,  had  no  express  order:  but  he  had  an  implied  authority, 
from  both  sides,  to  do  what  was  fit  and  rigltt  to  be  done,  as  none  of  them  had 
agents  in  the  place :  and  whatever  it  was  right  for  him  to  have  done,  if  it  had 
been  his  own  ship  and  cargo,  the  underwriter  must  answer  for  the  consequences 
of,  because  this  is  within  his  contract  of  indemnity.  («)  Suppose  there  had 
been  no  insurance,  what  *ought  the  captain  to  have  done?  1st,  ^  i^ofo  -1 
As  to  the  cargo,  according  to  the  course  of  the  voyage,  the  ship  L  J 

should  have  arrived  at  London  in  Juli/.  On  the  capture,  part  had  been  taken 
out,  some  was  washed  overboard,  fifty-seven  hogsheads  were  damaged,  and 
the  whole,  from  the  leaking  of  the  vessel,  was  in  a  perishable  state.  There 
were  no  storehouses  ;  nor  could  the  ship  proceed  in  the  state  she  was  in.  The 
crew  were  gone,  and  an  embargo  was  laid  on  till  December.  What,  shall  a 
cargo,  which  was  intended  to  arrive  at  London  in  July,  be  kept  in  a  perish- 
able state  at  Ne7V  York,  in  a  leaky  vessel,  till  December?  2ndly,  As  to  the 
ship,  it  was  certainly  better  to  sell  her  than  to  bring  her  to  London.  There 
was  no  crew  belonging  to  her,  and  she  had  no  cargo.  Even  if  all  the  cargo 
had  been  left,  the  expenses  of  repairs  would  have  exceeded  the  freight.  If  she 
liad  been  brought  home,  the  expense  of  bringing  her  might  have  been  more 
than  what  she  would  have  sold  for  in  I^ondon.  It  has  been  said,  that  the 
damage  would  not  have  fallen  on  the  underwriters ;  but  the  argument  drawn 
from  thence  is  a  fallacy ;  for  that  circumstance  goes  to  determine  it  to  be  the 
interest  of  the  insured  to  abandon  the  voyage.  The  point  is,  what  did  the 
owner  suffer  by  the  capture?  and  it  appears  that  he  suffered  so  mucli,  that  it 
was  not  worth  while  to  pursue  the  voyage.      The  whole  voyage  was  lost.     As 

(a)  In  the  case  of  Reid  v.  Darby,  10  East,  143,  the  Court  seemed  to  think  that  the 
captain  had  no  authoritj'  to  part  with  the  ship ;  but  should  hiwe  repaired  her  and  prosecuted 
his  voyage.  And  in  Johnson  v.  Shippen,  2  Lord  Raym.  984,  Lord  Holt  hehl  expressly 
that  the  master  had  no  authority  to  sell  any  part  of  the  ship,  but  that  he  might  hypothe- 
cate. Sec,  however,  the  judgment  of  Lord  Stowell,  in  the  case  of  the  Gratitudiae,  3 
Rob.  A.  R.  240. 

Vol.  VII.—P 


308  TOTAL   LOSSES   AND    ABANDONMENT. 

the  captain  did  not  know  of  the  insurance,  he  had  no  temptation  to  give  the 
turn  of  the  scale  to  one  side  or  the  other.  I  left  it  to  the  jury  to  determine, 
whether  what  the  captain  had  done  was  for  the  benefit  of  the  concerned.  If 
they  had  found  "that  it  was"  in  words,  where  would  have  been  the  question 
of  law  ?" 

The  Court,  therefore,  discharged  the  rule  for  a  new  trial. 

The  more  recent  decisions  seem  to  support  the  authority  of  the  preceding 
case,  and  to  establish  the  doctrine  that  the  master  may,  in  a  case  of  absolute 
necessity,  make  a  sale  of  the  ship,  if  he  act  bona  fide,  and  for  the  real  benefit 
of  the  owners.     But  there  must  be  the  clearest  proof  of  the  necessity  of  the  case: 

*q70     "1  '^  '""^^  ""^^  °"^^'  '^^  shown  that  the  vessel  *wanted  repairs,  but 
L      ^'^     J  that  it  was  impossible  to  procure  the  money  for  that  purpose,  [a] 

Thus  in  an  action  on  a  policy  of  insurance  on  the  ship  Lady  Banks,  which 
had  been  sold  by  the  master  at  the  Isle  of  France,  the  jury  found,  first,  that 
the  master  appeared  to  have  acted  according  to  the  best  of  his  judgment;  secondly, 
that  the  sale  was  conducted  fairly ;  and  thirdly,  that  there  was  no  necessity 
for  the  sale  of  the  ship ;  the  verdict  was  entered  for  the  assured  for  an  average 
loss  only,  and  not  for  a  total  loss,  with  a  benefit  of  salvage,  Avhich  had  been 
claimed,  (b) 

And  where  a  ship  insured  to  Neio  York  became  so  damaged  and  leaky  in 
the  course  of  the  voyage,  that  the  crew,  overcome  with  fatigue,  were  obliged 
to  desert  her;  and  a  fresh  crew,  from  another  vessel,  took  charge  of  her,  and 
succeeded  in  bringing  her  to  Neiv  Fork,  where  she  was  sold  for  payment  of 
the  salviige,  without  any  endeavour  on  the  part  of  the  owner  to  prevent  the 
sale  :  it  was  held,  that  the  desertion  of  the  crew  did  not  make  it  a  total  loss ; 
and  that  as  it  did  not  appear  that  the  sale  was  necessary,  or  that  the  owners 
had  done  any  thing  to  prevent  it,  it  did  not  give  them  a  right  to  abandon,  (c) 

We  come  now  to  the  case  of  Hamilton  v.  Mendez,  (^d)  which  is  one  of  the 
r  *'iRn  1  '^*'^*  ii^ipoitant  cases  decided  by  Lord  ^Mansfield.  It  was  a  spe- 
L  -^  cial  case  reserved  at  Gruildhull,  at  the  Sittings  there  before  Lord 

Mansfield,  after  Michaelmas  Term,  1760,  in  an  action  brought  against  the 
defendant,  as  one  of  the  insurers,  upon  a  policy  of  insurance  from  Virginia 
or  Maryland  to  London,  of  a  ship  called  the  Selby,  and  of  goods  and  mer- 
chandise therein,  until  she  shall  have  moored  at  anchor  twenty-four  hours  in 
good  safety.     The  case  stated  for  the  opinion  of  the  Court,  was  as  follows : 

That  the  ship  Selby,  mentioned  in  the  policy,  being  valued  at  1,200/.  ;  and 
the  plaintiff  having  interest  therein,  caused  the  policy  in  question  to  be  made ; 
and  the  same  was  accordingly  made,  in  the  name  of  John  Mackintosh,  on  behalf 
and  for  the  use  and  benefit  of  the  plaintiff,  and  was  subscribed  by  the  defendant, 
as  stated,  for  100/.  That  the  ship  was  in  good  safety  at  Virginia,  where  she 
took  on  board  one  hundred  and  ninety-two  hogsheads  of  tobacco,  to  be  deliv- 
ered at  London.  That  on  the  28th  day  of  March,  she  departed,  and  set  sail 
from  Virginia  to  London;  and  on  the  6th  day  of  May  following,  as  she  was 

(fl)  The  Fanny  and  Elmira,  Ed.  A.  R.  117.  Robertson  v.  Clarke,  1  Bing.  445,  and 
.see  Royal  Exch.  Assur.  Comp.  v.  Idle,  which  was  a  writ  of  error  from  the  Court  of  Com- 
mon Picas,  where  it  was  decided  that  a  necessity  for  the  sale  must  appear,  and  a  venire  de 
nutm  was  awarded  to  ascertain  whether  it  existed  or  not.     3  Drod.  &  Bing.  l.'jl. 

{!))  Maehurn  V.  J,eckie,  tried  before  C.  J.  Dallas,  March  5th,  1822.  Abb.  on  Shipp. 
p.  5,  (6th  edit.)  Sec  also  Freeman  v.  East  India  Comp.  5  B.  &  A.  617.  Wilson  v. 
.Millar,  2  8tark.  1.  Robertson  v.  Carruthers,  2  Stark.  571,  and  Hunter  v.  Parker,  7  M. 
&  W.  342,  where  the  Court  of  Exchequer  seemed  to  concur  with  the  recent  authorities. 

(c)  Thorndey  v.  Hebson,  2  B.  &  A.  513,  and  sec  Falkner  v.  Ritchie,  2  M.  &  !S.  290. 
But  it  is  otherwise  when  the  cargo  is  taken  out  of  the  possession  of  the  assured  by  the  bar- 
ratrous act  of  the  master  and  mariners.     Dixon  v.  Rcid,  5  B.  &  C.  597. 

(r/)  2  Burr.  1198;  1  W.  Black.  276. 


TOTAL   LOSSES   AND    ABANDONMENT.  209 

sailin*^  and  proceeding  in  her  said  voyage,  was  taken  by  a  French  privateer 
called  the  Aurora  of  Jiayonnc.  '['liat  at  the  time  of  the  capture,  tlie  Selby 
had  nine  men  on  board;  and  the  captain  of  the  said  privateer  took  out  six, 
besides  the  captain,  leaving  only  the  mate  and  one  man  on  board.  That  the 
French  put  a  prize-master  and  several  men  on  board  the  ship  Selby,  to  carry 
her  to  France.  That  as  the  French  were  carrying  her  towards  France,  on 
the  23rd  day  of  the  said  3Iay,  she  was  retaken  off  Bayonne  by  an  English 
man-of-war;  and  accordinsly  sent  into  Plymouth,  where  she  arrived  the  6th 
day  of  June  following.  That  the  plaintiff,  living  at  Hull,  as  soon  as  he  was 
informed  what  had  befallen  his  ship.  The  Selby,  wrote  a  letter  on  tlie  23rd  of 
June,  to  his  agent,  .Tohn  Mackintosh,  living  in  I^ondon,  to  acquaint  ihe  defend- 
ant, "'that  the  plaintiff  did  from  thence  abandon  to  him  his  interest  in  the  said 
ship,  as  to  the  said  100/.  by  the  defendant  insured."  That  the  said  John 
Mackintosh,  on  the  26th  of  .Tune,  acquainted  the  defendant  with  the  offer  to 
abandon  the  ship;  to  which  the  ^defendant  answered,  "that  he  ^  ^„^,  -, 
did  not  think  himself  bound  to  take  to  the  ship;  but  was  ready  to  L  -' 

pay  the  salvage,  and  all  other  losses  and  charges  that  the  plaintiff  sustained  by 
the  capture."  That  upon  the  19th  day  o^  August,  the  ship  Selby  was  brought 
into  the  port  of  London,  by  the  order  of  the  owners  of  the  cargo,  and  the  re- 
captors.  That  the  ship  Selby  sustained  no  damage  from  the  capture.  That 
the  whole  cargo  of  the  said  ship  was  delivered  to  the  freighters,  at  the  port  of 
London,  who  paid  the  freight  to  Benjamin  Vaughan,  without  prejudice.  The 
question,  therefore,  submitted  to  the  opinion  of  the  Court  is,  whether  the  plain- 
tiff, on  the  said  26th  day  of  June,  had  a  right  to  abandon,  and  has  a  right  to 
recover,  as  for  a  total  loss. 

After  two  arguments  at  the  Bar  upon  this  question,  and  after  the  Court  had 
taken  time  to  deliberate  upon  it,  their  unanimous  resolution  was  delivered  by 
the  Chief  Justice. 

Lord  Mansfield. — "The  plaintiff  has  averred  in  his  declaration,  as  the  basis 
of  his  demand  for  a  total  loss,  'tliat  by  the  capture,  the  ship  became  wholly 
lost  to  him.'  The  general  question  is,  whether  the  plaintiff,  who,  at  the  time 
of  his  action  brought,  at  the  time  of  his  offer  to  abandon,  and  at  the  time  of 
his  being  first  apprized  of  any  accident  having  happened,  had  only,  in  truth, 
sustained  an  average  loss,  ought  to  recover  for  a  total  one?  In  support  of  the 
affirmative,  the  counsel  for  the  plaintiff  insisted  on  the  four  following  points : 
1st,  That  by  this  capture,  the  property  was  changed;  and  therefore,  the  loss 
total  forever.  2dly,  If  the  property  were  not  changed,  yet  the  capture  was  a 
tot'd  loss.  3dly,  That  when  the  ship  was  brought  into  Plymouth,  particularly 
on  the  26th  day  of  June,  the  recovery  was  not  such  as,  in  truth,  changed  the 
totality  of  the  loss  into  an  average.  4thly,  Supposing  it  did,  yet,  the  loss 
having  once  been  total,  a  right  vested  in  the  insured  to  recover  the  whole  upon 
abandoning;  of  which  right  he  could  never  be  divested  by  any  subsequent 
event. 

"A.S  to  the  first  point.  If  the  change  of  property  were  at  all  material 
between  the  insurer  and  insured,  it  would  not  *be  applicable  to  this  p  *qqo  ~[ 
case ;  because  by  the  marine  law  of  England,  there  is  no  change  ^  J 

of  property,  in  case  of  a  capture,  before  condemnation ;  and  now,  by  the  Act 
of  Parliament,  the  jus  postliminii  continues  forever,  (a)  I  know  many  writers 
argue,  between  the  insurer  and  insured,  from  the  distinction,  whether  the  pro- 
perty was  or  was  not  changed  by  the  capture,  so  as  to  transfer  a  complete  right 
from  the  enemy  to  a  recaptor,  or  neutral  vendee,  against  the  former  owner. 
But  arbitrary  notions  concerning  the  change  of  property  by  capture,  as  between 

(a)  29  Geo.  2,  c.  34,  s.  24. 


210  TOTAL    LOSSES   AND   ABANDONMENT. 

the  former  owner  and  recaptor,  or  a  vendee,  ought  never  to  be  the  rule  of  deci- 
sion, as  between  the  insurer  and  the  insured  upon  a  contract  of  indemnity,  con- 
trary to  the  real  truth  of  the  fact.  And  therefore  I  agree  with  the  counsel  for 
the  plaintiff,  upon  this  second  point,  that  by  this  capture,  while  it  continued, 
the  ship  was  totally  lost,  though  it  be  admitted,  that  the  property,  in  the  case 
of  a  recapture,  never  was  changed,  but  returned  to  the  former  owner. 

"The  third  point  depends,  as  every  question  of  this  kind  must,  upon  the 
particular  circumstances.  It  does  not  necessarily  follow  that,  because  there  is 
a  recapture,  therefore  the  loss  ceases  to  be  total.  If  the  voyage  be  so  defeated, 
as  not  to  be  worth  the  further  pursuit;  if  the  salvage  be  high,  and  the  other 
expenses  great;  or  if  the  underwriter  refuse  to  bear  these  expenses,  the  insured 
may  abandon.  But  in  the  present  case,  the  voyage  was  so  far  from  being  lost, 
that  it  had  only  met  with  a  short  temporary  obstruction ;  the  ship  and  cargo 
were  both  entirely  safe :  the  expense  incurred  did  not  amount  to  near  half  the 
value ;  and  upon  the  26th  of  June,  when  the  ship  was  at  Plymouth,  and  the 
offer  was  made  to  abandon,  the  insurer  undertook  to  pay  all  charges  and  ex- 
penses, to  which  the  plaintiff  might  be  put  by  the  capture.  The  only  argu- 
ment to  shew  that  the  loss  had  not  then  ceased  to  be  total,  was  built  upon  a 
)nistaken  supposition,  that  the  recaptor  had  a  right  to  demand  a  sale,  and  to  put 
r  *^ft^  "1  ^  ^^''P  ^^  *any  further  prosecution  of  the  voyage.  But  that  is  not 
L  -•  so.     The  property  returned  to  the  plaintiff,  pledged  to  the  recap- 

tors  for  one-eighth  of  the  value,  as  salvage  for  retaking  and  bringing  the  ship 
into  an  English  port.  Upon  paying  this,  the  owner  was  entitled  to  restitution. 
The  recaptor  had  no  right  to  sell  the  ship.  If  they  differed  about  the  value, 
the  Court  of  Admiralty  would  have  ordered  a  commission  of  appraisement. 
In  this  case,  it  was  the  interest  of  the  owner  of  the  ship,  the  owners  of  the 
cargo,  and  the  recaptors,  that  she  should  forthwith  proceed  upon  her  voyage 
from  Plymouth  to  London.  But  had  the  recaptor  opposed  it,  or  affected  delay, 
the  Court  of  Admiralty  would  have  made  an  order  for  bringing  her  immediately 
to  London,  her  port  of  delivery,  upon  reasonable  terms.  Therefore,  it  is  most 
clear,  that  upon  the  26th  day  of  June,  the  ship  had  sustained  no  other  loss,  by 
reason  of  the  capture,  than  the  short  temporary  obstruction,  and  a  charge  which 
the  defendant  had  offered  to  pay  and  satisfy.  This  brings  the  whole  to  the 
fourth  and  last  point. 

"The  plaintiff's  demand  is  for  an  indemnity.  This  action,  then,  must  be 
founded  upon  the  nature  of  his  damnification,  as  it  really  is,  at  the  time  the 
action  is  brought.  It  is  repugnant  upon  a  contract  of  indemnity  to  recover  as 
for  a  total  loss,  when  the  final  event  has  decided  that  the  damnification,  in  truth, 
is  an  average,  or  perhaps  no  loss  at  all.  Whatever  undoes  the  damnification 
in  whole  or  in  part  must  operate  upon  the  indemnity  in  the  same  degree.  It  is 
a  contradiction  in  terms  to  bring  an  action  for  indemnity,  when,  upon  die  whole 
event,  no  damage  has  been  sustained.  The  reason  is  so  much  founded  in  sense 
and  the  nature  of  the  thing,  that  the  common  law  oi  England  adopts  it,  though 
inclined  to  strictness.  The  tenant  is  obliged  to  indemnity  his  lord  from  waste; 
but  if  the  tenant  do,  or  suffer  waste  to  be  done  in  houses,  yet  if  he  repair  before 
any  action  brought,  tiiere  lies  no  action  of  waste  against  "him.  («)  He  cannot 
however  plead  'non  fecit  vastum,'  but  the  special  matter,  Tiie  special  matter 
r  *S84  1  ^'^hows,  that  the  injury  being  repaired  before  the  action  brought, 
J  the  plaintiff  had  no  cause  of  action  ;  and,  whatever  takes  away  the 
cause,  takes  away  the  action.  Suppose  a  surety  sued  to  judgment;  and  after- 
wards, before  an  action  is  brought,  the  principal  pays  the  debt  and  costs,  and 
procures  satisfaction  to  be  acknowledged  upon  record :  the  surety  can  have  no 


(a)  Co.  Lit.  53,  a. 


TOTAL    LOSSES   AND    ABANDONMENT.  211 

action  for  an  indemnity,  because  he  is  indemnified  before  any  action  is  brouglit. 
If  the  demand  or  cause  of  action  does  not  subsist  at  the  time  the  action  is 
brouj^ht,  the  havinf^  existed  at  any  former  time  can  be  of  no  avail.  But  in  the 
present  case  tlie  notion  of  the  vested  right  in  the  plaintiff  to  sue  as  for  a  total 
loss  before  the  recapture,  is  fictitious  only,  and  not  founded  in  truth.  For  the 
insured  is  not  obliged  to  abandon  in  any  case ;  he  has  an  election.  No  right 
can  vest  as  for  a  total  loss  till  he  has  made  that  election :  he  cannot  elect  before 
advice  is  received  of  the  loss ;  and  if  that  advice  show  the  peril  to  be  over,  and 
the  thing  in  safety,  he  cannot  elect  at  all,  because  he  has  no  right  to  abandon 
when  the  thing  is  safe.  Writers  upon  maritime  law  are  apt  to  embarrass  gen- 
eral principles  with  the  positive  regulations  of  their  own  country :  but  they  all 
seem  to  agree  that,  if  the  thing  be  recovered  before  the  money  is  paid,  the 
insured  can  only  be  entitled  according  to  the  final  event."  His  Lordship  here 
cited  the  passage  from  Boc.cks,  (a)  and  then  proceeded  thus : — 

*'In  the  case  of  Spencer  v.  Franco^  though  upon  a  wager  policy,  the  loss 
was  held  not  to  be  total,  after  the  return  of  the  ship  Prince  Frederick  in  safety  ; 
though  she  had  been  seized  and  long  kept  by  the  king  of  Spain  in  a  time  of  . 
actual  war.  {b)  In  the  case  of  Pole  v.  Fitzgerald,  (c)  though  upon  a  wager 
policy,  the  majority  of  the  Judges  and  the  House  of  Lords  held  there  was  no 
total  loss,  the  ship  having  been  restored  before  the  expiration  of  the  four  months, 
the  time  for  which  she  was  insured. 

*"The  present  attempt  is  the  first  that  ever  was  made  to  charge  ^    *qoK     "i 
the  insurer  as  for  a  total  loss,  upon  an  interest  policy,  after  the  L  -' 

thing  was  recovered;  and  it  is  said  the  judgment  in  the  case  of  Goss  v.  With- 
ers gave  rise  to  it.  It  is  admitted  that  that  case  was  no  way  similar.  Before 
that  action  was  brought,  the  whole  ship  and  cargo  were  literally  lost :  at  the 
time  of  the  offer  to  abandon,  a  fourth  of  the  cargo  had  been  thrown  overboard ; 
the  voyage  was  entirely  lost ;  the  remainder  of  the  cargo  was  fish  perishing, 
and  of  no  value  at  Milford  Haven,  where  the  ship  was  brought  in ;  the  ship 
so  shattered,  as  to  want  great  and  expensive  repairs ;  the  salvage  was  one-half, 
and  the  insurer  did  not  engage  to  be  at  any  expense ;  it  did  not  appear  that  it 
■was  worth  while  to  try  to  save  anything:  and  the  recaptor,  though  entitled  to 
one-half,  as  well  as  the  owner  of  the  ship  and  cargo,  left  the  whole  to  perish, 
rather  than  be  at  any  further  trouble  or  expense.  But  it  is  said,  though  the 
case  was  entirely  diff'erent,  some  part  of  the  reasoning  warranted  the  proposi- 
tion now  inferred  by  the  plaintiff  from  it.  The  great  principle  relied  upon 
was,  'that,  as  between  the  insurer  and  insured,  the  contract  being  an  indem- 
nity, the  truth  of  the  fact  ought  to  be  regarded ;  and  therefore  there  might  be  a 
total  loss  by  a  capture,  which  could  not  operate  as  a  change  of  property ;  and 
a  recapture  should  not  relate  by  fiction  (like  the  Roman  jus  postliminii)  as  if 
the  capture  had  never  happened,  unless  the  loss  was  in  truth  recovered.'  This 
reasoning  proved  e  converso,  that  if  the  thing  in  truth  were  safe,  no  artificial 
reasoning  shall  be  allowed  to  set  up  a  total  loss.  The  words  quoted  at  the  Bar 
were  certainly  used,  '  that  there  is  no  book,  ancient  or  modern,  which  does  not 
say  that  in  case  of  the  ship  being  taken,  the  insured  may  demand  for  a  total 
loss,  and  abandon.'  But  the  proposition  was  applied  to  the  subject-matter,  and 
is  certainly  true,  provided  the  capture,  or  the  total  loss  occasioned  thereby, 
continue  to  the  time  of  abandoning-,  and  bringing  the  action.  The  case  then 
before  the  Court  did  not  make  it  necessary  to  specify  all  the  restrictions.  But 
I  will  read  to  you  verbatim,  from  my  notes  of  the  ^Judgment  then  r-  ^.„j.^  -, 
delivered,  what  was  said,  to  prevent  any  inference  being  drawn  L  J 

beyond  the  case  then  determined." 

(a)  Roccus,  Not.  50,  (b)   Vide  ante,  p.  27. 

(c)  See  ante,  p.  28,  and  post,  in  this  section. 


212  TOTAL   LOSSES   AND    ABANDONMENT. 

His  Lordship,  having  read  a  great  part  of  his  former  argument  in  that  case, (6) 
went  on  in  this  way : — 

"From  this  mode  of  reasoning,  it  did  by  no  means  follow,  that,  if  the  ship 
and  cargo  had,  by  the  recapture,  been  brought  safe  to  the  port  of  delivery, 
without  having  sustained  any  damage  at  all,  that  the  insured  might  abandon. 
But,  without  dwelling  longer  upon  principles  or  authorities,  the  consequences 
of  the  present  question  are  decisive.  It  is  impossible  that  any  man  should 
desire  to  abandon  in  a  case  circumstanced  like  the  present  but  for  one  or  two 
reasons,  namely,  either  because  he  has  overvalued,  or  because  the  market  has 
fallen  below  the  original  price.  The  only  reasons  that  can  make  it  the  interest 
of  the  party  to  desire,  are  conclusive  against  allowing  it.  It  is  unjust  to  turn 
the  fall  of  the  market  upon  the  insurer,  who  has  no  concern  in  it,  and  could 
never  gain  by  the  rise.  And  an  overvaluation  is  contrary  to  the  general  policy 
of  the  marine  law ;  contrary  to  the  spirit  of  the  act  of  19  Geo.  2  ;  a  temptation 
to  fraud ;  and  a  great  abuse :  therefore  no  man  should  be  allowed  to  avail  him- 
self of  having  overvalued.  If  the  valuation  be  true,  the  plaintiff  is  indemnified 
by  being  paid  the  charge  he  was  put  to  by  the  capture.  If  he  has  overvalued, 
he  will  be  a  gainer  if  he  be  permitted  to  abandon ;  and  he  can  only  desire  it 
because  he  has  overvalued.  This  was  avowed  upon  the  first  argument,  and 
that  very  reason  is  conclusive  against  its  being  allowed.  The  insurer,  by  the 
marine  law,  ought  never  to  pay  less  upon  a  contract  of  indemnity  than  the 
value  of  the  loss  :  and  the  insured  ought  never  to  gain  more.  Therefore,  if 
there  were  occasion  to  resort  to  that  argument,  the  consequence  of  the  deter- 
mination would  alone  be  sufficient  upon  the  present  occasion.  But  upon  prin- 
ciples this  action  could  not  be  maintained  as  for  a  total  loss,  if  the  question 
were  to  be  judged  by  the  strictest  rules  of  common  law :  much  less  can  it  be 
r  *^87  1  ^"PPOJ'ted  for  a  total  loss,  as  the  question  ought  to  be  decided  *by 
•-  J  the  large  principles  of  the  marine  law,  according  to  the  substantial 

intent  of  the  contract,  and  the  real  truth  of  the  case.  If  the  question  is  to 
depend  upon  the  fact,  every  man  can  judge  of  the  nature  of  the  loss  before  the 
money  is  paid ;  but  if  it  is  to  depend  upon  speculative  refinem.ents,  from  the 
law  of  nations,  or  the  Roman  jus  postliminii  concerning  the  change  or  revest- 
ing of  property,  no  wonder  that  merchants  are  in  the  dark  when  doctors  have 
differed  upon  the  subject  from  the  beginning,  and  are  not  yet  agreed.  To  obvi- 
ate too  large  an  inference  being  drawn  from  this  determination,  I  desire  it  may 
be  understood  that  the  point  here  determined  is,  that  the  plaintiff  upon  a  policy 
can  only  recover  an  indemnity  according  to  the  nature  of  his  case  at  the  time 
of  the  action  brought,  or  (at  most)  at  the  time  of  his  ofier  to  abandon.  We 
give  no  opinion  how  it  would  be,  in  case  the  ship  or  goods  were  restored  in 
safety,  between  the  offer  to  abandon  and  the  action  brought,  or  between  the 
commencement  of  the  action  and  the  verdict.  And  particularly  I  desire  that 
no  inference  may  be  drawn  'that,  in  case  the  ship  or  goods  should  be  restored 
after  the  money  paid  as  for  a  total  loss,  the  insurer  could  compel  the  insured  to 
refund  the  money,  and  to  take  the  ship  or  goods  5'  that  case  is  totally  difllerent 
from  the  present,  and  depends  throughout  upon  difllsrent  reasons  and  principles. 
Here  the  event  had  fixed  the  loss  to  be  an  average  only,  before  the  action 
brought — before  the  offer  to  abandon,  and  before  the  plaintiff  had  notice  of  any 
accident;  consoqueiuly  before  he  could  make  an  election.  We  are  therefore 
of  opinion  that  he  cannot  recover  for  a  total,  but  for  an  average  loss  only;  the 
quantity  of  which  has  been  estimated  by  the  jury  at  ten  pounds  per  cent."  (o) 


(6)   Vide  ante,  Goss  v.  Withers,  p.  368  of  this  Treatise. 

(a)  See  the  case  of  Da  Costa  v.  Firth,  4  Burr.  1970,  where,  at  the  close  of  the  case,  it 
18  said,  "Here  is  a  solemn  abandonment  and  a  solemn  agreement  that  the  assurers  shall  be 
content  with  salvage  in  such  proportion  as  the  sum  insured  bears  to  the  whole  interest,  and 


TOTAL    LOSSES   AND    ABANDONMENT.  213 

*In  the  above  case  of  Hamilton  v.  Mendez,  Lord  Mansfield  in  p  *oqq  n 
delivering  the  jiulginent  expressly  reserves  for  the  Court  (as  a  new  L  J 

point)  the  right  to  decide,  without  being  fettered  by  that  case,  upon  the  ques- 
tion, if  it  should  arise,  "where  the  ship  or  goods  insured  should  happen  to  be 
restored  between  the  time  of  the  offer  to  abandon,  and  the  time  of  the  action 
brought:"  for,  says  his  Lordship,  "we  give  no  opinion  how  it  would  be  in 
case  the  ship  were  restored  in  safety,  between  the  offer  to  abandon  and  the 
action  brought." 

This  question,  however,  constituted  a  principal  feature  in  a  more  recent  case 
of  Buinbridgc  and  another  v.  Neilson,  («)  which  was  tried  by  Lord  Chief 
Justice  Ellcnborough^  near  fifty  years  after  the  decision  of  Hamilton  v.  Men- 
dez. It  was  an  action  on  a  policy  of  insurance  on  the  ship  called  the  Mary^ 
valued  at  6,000/.,  at  and  from  Liverpool  to  any  port  or  ports  in  Jamaica, 
during  her  stay  there,  and  from  thence  to  her  port  of  discharge  in  Great  Bri- 
tain, (the  rest  of  the  policy  is  not  material.)  There  was  another  count  upon 
a  policy  on  freight  valued  at  4,000/.  upon  the  same  voyage.  At  the  trial,  before 
Lord  Ellenhorough,  the  following  facts  were  found.  The  ship  sailed  from 
Jamaica  with  a  cargo  and  freight  bound  to  Liverpool.  On  the  21st  of  Sep- 
tember, she  was  captured  during  her  homeward  voyage  by  an  enemy.  On  the 
25th  day  of  the  same  month  she  was  recaptured.  On  the  30th  day  of  Sep- 
tember, the  plaintiffs  received  intelligence  at  Liverpool  of  the  capture,  but  not 
of  the  recapture,  and  on  the  day  following  communicated  the  same  to  the  under- 
writers, and  gave  notice  of  abandonment.  On  the  2nd  day  of  October,  intel- 
ligence of  the  capture  was  confirmed.  On  the  6th  of  October,  five  days  after 
the  notice  of  abandonment,  the  plaintiffs  received  the  first  intelligence  of  the 
recapture  of  the  vessel,  and  that  she  then  lay  at  L^och  Swilley,  in  Ireland,  in 
safety,  in  the  possession  of  the  recaptors.  This  intelligence  was  immediately 
communicated  to  the  underwriters,  with  notice  that  the  plaintiffs  nevertheless 
persevered  *in  their  abandonment ;  but  offered  to  do  their  best  for  p  *QeQ  ~| 
the  benefit  of  those  who  should  ultimately  be  concerned  and  inter-  L  J 

ested  in  the  vessel,  without  prejudice.  Under  such  offer,  and  by  agreement 
with  the  underwriters,  without  prejudice  to  either  party,  the  plaintiffs  have 
compromised  with  the  recaptors ;  the  vessel  has  been  restored,  and  has  arrived 
at  Liverpool,  being  her  port  of  discharge  according  to  the  terms  of  the  policy, 
where  she  now  is  in  salety.  And  the  owners  have  also  without  prejudice 
received  the  freight  of  the  goods  on  board  her,  and  the  proportion  of  salvage 
and  expenses  of  such  goods.  The  plaintiffs  obtained  the  possession  of  the 
vessel  at  Loch  Swilley  under  the  said  agreement,  after  the  notice  of  abandon- 
ment, but  before  the  action  was  brought ;  and  the  vessel  did  not  arrive  at  Liver- 
pool till  after  the  commencement  of  the  action.  The  ship  was  never  taken  into 
an  enemy's  port,  nor  did  she  sustain  any  damage,  whilst  in  possession  of  the 
enemy.  The  amount  of  the  salvage,  damages  and  charges  upon  the  ship  is 
15/.  4s.  8(/.,  and  upon  the  freight,  13/.  Us.  5(Z.  per  cent,  on  the  sum  insured. 
The  defendants  paid  to  the  plaintiffs  before  the  commencement  of  this  action 
57/.  12s.  2(/.,  being  the  amount  of  their  proportion  of  an  average  loss  upon 
the  two  policies,  which  the  plaintiffs  accepted,  without  prejudice  to  their  claim 
of  a  total  loss  upon  their  abandonment.  This  case  was  fully  argued  at  the 
Bar,  and  then, 


for  the  assured  to  refund  more  than  in  that  proportion  would  be  contrary  to  the  underwriter's 
own  agreement.  And,  therefore,  the  net  proportion  only,  in  respect  of  the  plaintiff's  sub- 
scription, after  deduction  of  salvage,  ought  to  be  returned  to  him;  and  that  is  paid  into 
Court."     The  postea  was  delivered  to  the  defendant. 

(a)   10  East,  329  ;  and  see  Parsons  v.  Scott,  2  Taunt.  363.     Evereth  v.  Smith,  2  M. 
&  S.  278.     Falkner  v.  Ritchie,  2  M.  &  S.  290 ;  and  M'lver  v.  Henderson,  4  M.  &  S.  575. 


214  TOTAL    LOSSES   AND    ABANDONMENT. 

Lord  Ellenhorough  said,  "This  case,  tho\igh  new  in  specie,  is  by  no  means 
new  in  principle:  and  though  Lord  Mansfield,  in  Hamilton  v.  Mendez,  said, 
that  he  would  not  decide  how  the  case  would  be,  if  the  ship  and  goods  were 
restored  in  safety  between  the  offer  to  abandon,  and  the  action  brought ;  yet 
there  can  be  no  doubt  what  his  decision  would  have  been,  if  the  facts  of  this 
case  had  been  brought  in  judgment  before  him.  The  facts  of  the  case  are, 
&c.,  (here  his  Lordship  stated  the  facts  of  the  case  as  above  related.)  Now 
the  question  is,  whether  that,  which  in  the  result  turns  out  to  have  been  only 
an  average  loss,  and  that  to  a  trifling  extent,  shall,  because  the  notice  of  aban- 
r  *^Qn  1  donment,  which  was  given  *under  the  supposition  at  the  time  that 
L  J  it  was  a  total  loss,  be  now  recovered  against  the  underwriters  as  a 

total  loss,  after  it  is  ascertained  to  be  only  an  average  loss.^  'i'o  give  effect  to 
this  claim  would  be  greviously  to  enlarge  the  responsibility  of  underwriters, 
and  to  make  them  answerable  not  for  the  actual  loss  sustained  by  the  assured, 
whom  they  have  engaged  to  indemnify  against  the  risks  in  the  policy ;  but  for 
a  supposed  total  loss  at  the  time  of  the  notice  to  abandon,  when  that  total  loss, 
as  it  was  supposed,  *liad  in  fact  ceased  to  exist.  But  it  has  been  contended  by 
the  plaintiffs'  counsel,  that  if  the  abandonment  is  once  well  made,  a  right  of 
action  thereby  becomes  vested,  which  cannot  be  devested  by  subsequent  events. 
That  proposition  is  not  only  not  true  in  the  whole,  but  is  not  true  in  any  of  its 
parts.  The  true  effect  of  a  notice  of  abandonment  is  only  this,  that  if  the  offer 
to  abandon  turns  out  to  have  been  properly  made  upon  the  supposed  facts, 
which  turn  out  to  be  true  5  the  assured  has  put  himself  in  a  condition  to  insist 
on  his  abandonment.  But  it  is  not  enough  that  it  was  properly  made  upon 
facts  supposed  to  exist  at  the  time,  if  it  turn  out  that  circumstances  existed, 
unknown  to  the  parties,  which  did  not  entitle  the  assured  to  abandon.  The 
notice  would  be  properly  given,  upon  intelligence  received,  and  really  credited 
by  the  assured,  of  the  ship's  being  wrecked,  whether  that  intelligence  were 
true  or  not,  and  although  the  letter  conveying  the  intelligence  should  turn  out 
to  be  a  forgery :  and  yet  it  is  clear  that  no  right  of  action  would  vest,  founded 
upon  such  abandonment,  thus  made  upon  false  intelligence,  without  any  fact  to 
support  it.  What  is  the  notice  of  abandonment  more  than  this :  that  the 
assured,  having  had  notice  of  circumstances,  which  entitle  him,  if  true,  to  treat 
the  adventure  as  a  total  loss,  in  contemplation  of  those  existing  circumstances, 
cast  what  is  considered  as  a  desperate  risk  on  the  uifderwriter.''  But  does  not 
all  that  presume  the  existence  of  those  facts,  on  which  the  right  results  to  him 
of  calling  upon  the  underwriters  to  indemnify  him.^  But  if  all  this  turns  out 
to  be  a  misconception ;  if,  at  the  time,  it  had  ceased  to  be  a  total  loss,  and  no 
r  *SQ1  1  *^^'"^g^  ^^^^  happened;  or  if  the  only  damnification  arises  out  of 
L  -^  the  very  act,  which  has  saved  the  thing  insured  from  total  loss, 

namely,  the  salvage  on  the  recapture,  the  whole  foundation  of  the  abandonment 
fails.  It  was  then  argued,  that  if  the  right  of  abandonment  once  vested,  and 
was  acted  upon  in  time,  it  cannot  afterwards  be  devested  by  subsequent  intelli- 
gence of  other  circumstances  and  events  :  but  the  case  of  Macarthy  v.  Abel  is 
an  authority  to  the  contrary,  («)  for  there,  though  notice  of  abandonment  were 
well  given  at  the  time,  yet  it  was  devested  by  subsequent  circumstances,  where 
it  appeared  tliat  the  cause  of  the  abandonment  had  ceased  to  exist. 

"Next  it  is  contended,  that  by  the  ship's  being  carried  into  a  port  of  Ireland 
out  of  the  course  of  her  voyage,  after  her  recapture  tlie  right  of  abandonment 
revived.  I  do  not,  however,  understand,  whether  this  is  insisted  upon  as  an 
entire  and  distinct  cause  of  abandonment,  or  as  connected  with  the  capture  and 
recapture.     If  it  grew  out  of  the  recapture,  let  us  see  what  Lord  Mansfield 


(a)  5  East,  388,  and  post. 


TOTAL    LOSSES    AND    ABANDONMENT.  215 

says  of  it  in  Hamilton  v.  Mendez.  'The  third  point  depends,  as  every  ques- 
tion of  this  kind  must,  on  the  particular  circumstances.  It  does  not  necessarily 
follow  tliat,  because  there  is  a  recapture,  therefore  the  loss  ceases  to  be  total. 
If  the  voyage  be  so  defeated,  as  not  to  be  worth  the  further  pursuit' — here  no 
voyage  is  lost  or  defeated,  for  the  voyage  is  performed.  'If  the  salvage  be 
high' — here  it  is  not  so,  but  very  trifling.  'If  the  other  expenses  be  great,  and 
the  underwriter  refuse  to  bear  them' — here  the  expenses  are  not  great,  and  the 
actual  loss  has  been  paid  by  the  underwriters  into  the  liands  of  the  assured. 
If,  indeed,  after  the  recapture,  the  ship  had  been  carried  into  a  port  abroad, 
and  the  sale  had  become  inevitable,  because  no  person  would  indemnify  the 
recaptors  for  their  one-eighth  salvage,  that  might  have  made  it  a  total  loss :  but 
that  is  not  the  present  case :  and  therefore  none  of  the  circumstances  put  by 
Lord  ManHfiekU  which,  after  a  recapture,  might  still  make  the  loss  total,  exist 
in  this  ca«e.  I  cannot,  however,  *but  consider,  as  at  present  p  ^nnn  -i 
advised,  that  the  abandonment  must  be  taken  generally,  as  relating  L  J 

only  to  the  actual  state  of  things,  at  the  time  of  the  abandonment  made ;  and  if 
necessary  to  the  decision  of  this  case,  I  should  wish  to  have  that  point  fully 
considered.  I  am  not  disposed  to  enlarge  the  grounds  of  abandonment  against 
underwriters — a  privilege,  which  every  one  knows,  has  been  much  abused. 
In  almost  every  case  ol'  a  valued  policy,  it  is  the  interest  of  the  assured  to 
abandon :  and  it  therefore  becomes  the  Court  to  watch  every  such  case ;  and 
in  no  instance  to  enlarge  that,  which  in  its  nature  is  only  an  average,  into  a  total 
loss.  In  Macarthy  v.  Abel,  it  miglit  as  well  have  been  said,  tliat  having  been 
once  a  total  loss,  it  was  to  continue  a  total  loss  :  but  it  was  held  otherwise,  and 
that  case  is  no  otherwise  distinguishable,  except  eventually  that  turned  out  to  be 
no  loss  :  and  this  is  only  an  average  loss.  But  I  can  see  no  difference,  whether 
it  ceased,  by  subsequent  events,  to  be  a  total  loss  altogether,  or  whether  it  was 
reduced  by  the  events  to  so  minute  a  loss  as  in  the  present  case.  Then,  as  in 
the  case  of  Godsall  v.  Boldero,  we  look  to  the  real  nature  of  the  contract  in  a 
policy  of  insurance  :  and  there  it  was  considered  to  be,  as  it  is,  a  mere  contract 
of  indemnity,  [a)  Therefore,  though  in  that  case  there  was  a  total  loss  with 
respect  to  the  subject-matter  of  the  risk  insured,  yet  circumstances  having  after- 
wards intervened,  which  addeemed  the  loss  of  the  insured,  he  was  held  not  to  be 
entitled  to  recover.  So  here,  as  that  which  was  supposed  to  be  a  total  loss,  at 
the  time  of  the  notice  of  abandonment  first  given,  had  ceased  to  be  so,  and  in 
the  event  only  a  small  loss  has  been  incurred,  that  is  the  real  amount  of  the 
damnification  under  this  contract  of  indemnity;  and  that  has  been  paid  by  the 
underwriters." 

The  three  other  Judges,  Grose,  Le  Blanc,  and  Bayley,  delivered  their 
opinions,  concurring  with  his  Lordship  :  and  judgment  was  pronounced  for  the 
defendant,  {b) 

*The  principle  of  the  law  laid  down  in  the  preceding  case,  that  p  *qqq  n 
the  effect  of  an  abandonment  is  only  to  put  the  assured  into  a  con-  •-  -^ 

dition  to  avail  himself  of  it  provided  the  offer  turns  out  to  be  properly  made 
upon  the  supposed  facts,  was  lately  recognized  by  the  Court  of  King's  Bench, 
in  the  case  of  Naylor  v.  Taylor,  (c) 

It  was  an  action  on  a  policy  of  insurance  on  goods  by  the  ship  Monarch, 
"at  and  from  Liverpool  to  any  port  or  place  in  the  river  Plata,  with  liberty, 
in  the  event  of  a  blockade  or  being  ordered  off  the  river  Plata,  to  proceed  to 


(a)  9  East,  72. 

{b)  Smith  V.  Robertson,  2  Dow.  474,  and  also  Patterson  v.  Ritclue,  4  M.  &  S.  393. 
Brothcrton  v.  Barber,  5  M.  &  S.  447. 
(c)  9  B.  &  C.  718. 


216  TOTAL   LOSSES   AND    ABANDONMENT. 

any  other  port,  and  there  wait  or  discharge."  The  loss  was  averred  to  have 
been  by  capture.  The  ship  sailed  from  Liverpool^  and  was  taken  by  a  Bra- 
zilian frigate,  in  the  river  Plata,  and  sent  to  Rio  de  Janeiro  for  adjudication; 
but  was  rescued  by  the  master  and  crew,  who  brouj^ht  the  ship  and  cargo  back 
to  Liverpool,  where  the  master  landed  and  warehoused  the  goods.  The 
assured,  after  they  had  heard  of  the  capture,  and  after  the  rescue,  but  before 
they  heard  of  it,  gave  notice  of  abandonment  to  the  underwriters. 

A  verdict  was  found  for  the  plaintiff,  with  liberty  to  the  defendant  to  move 
to  enter  a  non-suit,  if  the  Court  was  of  opinion  that  there  was  not  a  total  loss. 

Lord  Tenterden,  C.  J. — "It  is  not  necessary  to  deliver  an  opinion  upon  the 
effect  of  the  rescue,  or  of  the  return  to  Liverpool.  The  late  cases  show  that 
a  mere  loss  of  the  adventure  by  retardation  of  the  voyage,  without  loss  of  the 
thing  insured,  either  by  its  being  actually  taken  from  the  ship  or  spoiled,  does 
not  constitute  a  total  loss,  unless  by  the  aid  and  effect  of  an  abandonment.  In 
the  present  case  the  goods  have  been  brought  back  to  JAverpool.  It  does  not 
appear  upon  what  grounds  the  master  has  detained  them :  if  it  be  on  the  ground 
of  a  claim  of  the  nature  of  salvage,  the  plaintiffs  may  have  them  on  satisfying 
that  claim.  There  is  no  proof  that  the  goods  are  deteriorated.  The  particular 
r  *^Q4.  1  adventure  upon  which  they  were  sent  has,  indeed,  been  defeated : 
L  J  *but  this  fact  will  not  of  itself  make  the  underwriters  liable  for  a 

total  loss.  It  therefore  becomes  necessary  for  the  plaintiff  to  show  that  the 
abandonment  has  the  effect  of  enabling  them  to  recover  as  for  a  total  loss.  If 
the  abandonment  is  to  be  viewed  with  regard  to  the  ultimate  state  of  facts  as 
appearing  before  the  action  brought  according  to  the  opinion  of  the  Court  in 
Bainbridge  v.  Neilson,  there  has  not,  for  the  reasons  already  given,  been  a 
total  loss.  Doubts  were  expressed  as  to  the  propriety  of  the  decision  in  Bain- 
bridge V.  Neilson,  by  a  very  high  authority,  in  the  case  of  Smith  v.  Robert- 
son. («)  But,  notwithstanding  these  doubts,  the  rule  laid  down  in  Bainbridge 
V.  Neilson  was  adopted  and  acted  upon  by  the  Court  in  the  two  subsequent 
cases  of  Patterson  v.  Ritchie,  (/;)  and  Brothcrton  v.  Barber,  (c)  We  consider 
the  point  to  have  been  well  settled,  and  the  rule  established  by  these  authorities ; 
and  the  rule  to  enter  a  nonsuit  must  therefore  be  made  absolute."  (rf) 

There  was  a  very  recent  case  in  the  Court  of  Common  Pleas  of  Benson  v. 
Chapman,  (e)  It  was  an  action  of  covenant  on  a  policy  of  insurance,  dated 
12th  July,  1839,  made  by  the  defendant,  of  "  77ie  Neptune  Marine  Assu- 
rance Company  of  London,''  on  the  ship  The  Lord  Cochrane,  "at  and  from 
Pernambuco  to  Liverpool."  The  insurance  was  declared  on  freight  valued 
at  2000/.  The  cause  came  on  for  trial  at  Guildhall,  on  the  1st  July,  1842, 
before  Mr.  J.  Erskine,  when  a  verdict  was  taken,  by  consent,  for  the  plaintiff, 
subject  to  the  opinion  of  the  Court  upon  the  following  case.  "The  declara- 
tion alleged  a  loss  by  perils  of  the  sea.  The  ship,  whilst  coming  out  of  the 
harbour  of  Pernambuco,  struck  on  a  reef,  and  thereby  received  such  injury 
as  rendered  it  necessary  to  put  back  for  repair ;  the  cargo  was  taken  out,  and 
the  ship  repaired  at  a  cost  of  7,132/.,  including  the  charges  of  landing  and 
reshipping  the  cargo.  Tliere  being  no  other  means  for  raising  funds  to  pay  for 
r  *39'}  1  ^^^^  repairs,  the  master  *executed  a  bottomry  bond,  by  which  the 
-^  ship,  freight,  and  cargo  for  that  sum,  and  her  bottomry  premium 
of  20/.  per  cent.  The  ship  afterwards  sailed  for  Liverpool  with  her  original 
cargo  on  board,   and  arrived  there  in  safety.     The  plaintiff,  as  soon  as  he 


(a)  2  Dow.  474.  (i)  4  M.  «Sc  S.  393. 

(c)  5  M.  &S.  418. 

(d)  Sec  also  Caloi,'an  v.  London  Assur.  Comp.  5  M.  &  S.  447. 

(e)  7  Scott's  N.  R.  625. 


TOTAL   LOSSES   AND    ABANDONMENT.  217 

received  intimation  of  tlie  extent  of  the  damage  done  to  the  ship,  gave  notice  of 
abandonment  of  ship  and  freight  to  the  respective  underwriters,  and  repudiated 
the  bond  5  whereupon  the  ship  was  taken  possession  by  the  parties  chiiming 
under  the  bond,  and  sohl  under  an  order  of  the  Admiralty  Court.  At  the  sale, 
the  ship  produced  1,675/.,  which,  with  the  freight  earned  on  the  homeward 
voyage,  was  paid  over  to  the  obligees. 

Tindcil,  Chief  Justice,  now  delivered  the  opinion  of  the  Court.  His  Lord- 
ship, after  stating  the  case,  proceeded: — "Upon  this  state  of  facts,  we  are  of 
opinion  that  tliere  was  a  total  loss  of  freight  at  the  time  of  the  damage  sustained 
by  the  ship ;  and  that  the  plaintiff,  having  abandoned  to  the  underwriters  on 
freight,  is  entitled  to  recover  for  such  total  loss.  That  there  was  a  constructive 
total  loss  on  ship,  seems  not  to  have  been  made  a  question.  It  is  unnecessary 
to  cite  authorities  to  prove  that,  where  the  damage  to  the  ship  is  so  great  from 
the  perils  insured  against  as  that  the  owner  cannot  put  her  in  a  state  of  repair 
necessary  for  pursuing  the  voyage  insured,  except  at  an  expense  greater  than 
the  value  of  the  ship,  he  is  not  bound  to  incur  that  expense,  but  is  at  liberty  to 
abandon,  and  treat  the  loss  as  a  total  loss.  And  there  seems  to  be  as  little  doubt 
that  the  assured  has  the  right  of  abandoning  the  freight  where  there  has  been  a 
total  loss  of  the  ship.  The  assured  has  sustained  a  total  loss  of  the  freight,  if 
he  abandons  to  the  underwriters  on  ship,  and  is  justified  in  so  doing;  for  after 
such  an  abandonment  he  has  no  longer  the  means  of  earning  the  freight,  nor  the 
possibility  of  ever  receiving  it,  if  earned,  such  freight  going  to  the  underwriters 
on  ship.  In  the  present  case,  when  the  ship  was  at  Pcmambiico,  the  cargo 
taken  out,  and  the  damage  to  the  ship  very  much  exceeding  her  value,  and  as  the 
owner  had  no  means  of  completing,  except  at  a  ruinous  expense,  p  *oqa  ~i 
if  *at  that  time,  he  abandons  to  the  underwriters,  as  the  law  allows  L  J 

him  to  do,  the  freight  is  as  much  lost  to  him  as  if  the  ship  had  been  captured, 
and  placed  altogether  out  of  his  control.  The  defendant's  counsel  admits  that, 
if  the  master,  instead  of  repairing  the  ship  at  Pernambuco,  had  sold  her  there, 
the  loss  both  of  the  ship  and  freight  would  have  been  total :  but  he  contends 
that,  as  he  did  not  sell,  but  borrowed  money  and  repaired  the  ship,  which 
brought  the  same  cargo  to  England  and  earned  her  freight,  the  not  paying  the 
money  borrowed  was  the  voluntary  act  of  the  shipowner,  and  which  alone  pre- 
vented him  from  receiving  the  freight;  and  that  he  had  no  right  to  make  the 
loss  total  by  his  own  voluntary  act.  But,  in  the  first  place,  the  arrival  of  the 
ship  with  the  cargo  is  not  of  itself  sufficient  to  deprive  the  plaintiff  of  his  right 
to  recover,  if  he  gave  notice  of  abandonment  at  the  time  when  there  was  a  total 
loss.  The  ship  must  not  only  arrive,  but  must  arrive  in  such  circumstances, 
as  Mr.  Justice  Bayley  expresses  it,  in  Holdsworth  v.  JVise,  [ci)  'that  the 
assured  may,  if  they  please,  have  possession,  and  may  reasonably  be  expected 
to  take  it."  In  that  case  the  ship  had  been  deserted  by  the  crew,  acting  bond 
Jidc  for  the  preservation  of  their  lives,  and  had  been  taken  possession  of  by 
the  crew  of  another  vessel,  who  took  her  into  port,  repaired  her,  and  brought 
her  into  England,  but  subject  to  a  claim  for  repairs  and  salvage  equal  to  or 
exceeding  her  value.  The  owner  havinof  abandoned  before  he  knew  of  the 
safety  of  the  ship,  was  not  bound  to  take  the  ship,  but  entitled  to  recover  for  a 
total  loss.  In  that  case,  also,  the  captain  had  granted  a  bottomry  bond,  and 
the  ship  was  taken  possession  of  on  her  arrival  in  England  by  the  persons 
claiming  title  under  the  bottomry  bond.  The  case,  therefore,  bears  a  very  close 
resemblance,  no  less  in  principle  than  in  all  its  circumstances,  to  the  present; 
for  here  the  owner,  in  England,  had  abandoned  both  ship  and  freight  imme- 
diately on  hearing  the  damage  done  to  the  vessel,  and  had  never  afterwards 

(a)  7  B.  &  C.  794;  1  M.  &  R.  673. 


218  TOTAL    LOSSES   AND   ABANDONMENT. 

r    *QQ'7     1  i'itP''f6red  *with  either  :  here,  also,  the  master  had  repaired,  giving 
L  J  a  bottomry  bond  for  the  money  borrowed :   here,  also,  the  ship  is 

taken  possession  of  by  the  persons  claiming  under  such  bond ;  and  the  charge 
far  exceeds  the  value  of  the  sliip  and  freight.  We  think  the  case  above  refer- 
red to  does,  in  principle,  decide  that  before  us.  In  the  events  which  took  place, 
there  never  was  a  moment  at  which  the  owner  of  the  ship  could  have  earned 
or  received  the  freight,  after  the  ship  sustained  her  injury,  except  at  a  cost  far 
exceeding  the  value  of  ship  and  freight.  After  the  cargo  was  unshipped  at  Per- 
nambuco,  he  could  not  put  it  on  board  again,  without  incurring  the  expense  of 
repairs  beyond  the  value  of  the  ship  and  freight  :  when  the  ship  arrived  in 
England.,  he  could  not  receive  the  freight,  Avithout  paying  the  amount  of  the 
bottomry  bond.  If  the  master  had  actually  sold  the  ship  at  the  time  the  dam- 
age was  sustained,  and  the  purchaser  had  brought  her  back  and  earned  the 
freight,  there  is  no  doubt  but  that  the  owner  could  have  recovered  for  a  total 
loss  after  abandonment  j  and  we  see  no  substantial  diflerence  between  his  situa- 
tion, under  those  circumstances,  and  the  return  of  the  ship  pledged  by  a  bot- 
tomry bond  beyond  her  value.  There  seems  no  reason  for  holding  that  the  act 
of  the  master  in  repairing,  whilst  the  owner  was  ignorant  of  what  was  going 
on,  should  vary  his  rights,  the  case  expressly  finding  'that  he  never  interfered 
in  any  way  with  freight  or  ship  after  the  abandonment. '  We,  therefore,  think 
that  there  should  be  a  verdict  entered  for  the  plaintiff  for  2000/." 

In  the  case,  also,  of  Young  v.  Turing  and  others^  (a)  Lord  ^dinger,  C. 
B.,  now  delivered  the  judgment  of  the  Court: — "This  was  an  action  on  a 
policy  of  insurance,  at  and  from  Rotterdam  to  Java  and  Sumatra,- ■iii\(\.  back 
again  to  a  port  in  Holland,  upon  the  ship  Eliza,  valued  at  8,000/.  In  the 
course  of  her  voyage,  she  was  stranded  on  the  Goodivin  Sands,  and  plun- 
dered. She  was  afterwards  removed,  and  brought  first  to  Ramsgate,  and  then 
r  *oQQ  -|  to  London.  The  underwriters  *had  notice  of  abandonment.  It 
L  J  appears  by  the  evidence  set  forth  in  the  bill  of  exceptions,  that  just 

before  the  time  when  the  ship  was  cast  away,  she  was  worth  5,833/.  sterling; 
that  her  value,  as  she  lay,  was  700/. ;  and  that  the  salvage  was  420/.  Two 
English  witnesses  deposed  that  the  expenses  of  repairing  the  ship  m  England 
would  be  4,G15/. ;  that,  if  she  had  been  entitled  to  a  British  register,  she 
would  have  been  worth,  when  repaired,  from  4,500/,  to  4,700/.;  and  that,  if 
she  had  been  a  British  ship,  it  would  have  been  prudent  for  a  British  owner 
to  repair  her.  Several  Dutch  witnesses  stated  that  the  expense  of  repairing  her 
in  Holland  would  have  been  far  greater;  and  that  hei  value,  when  repaired  in 
Holland,  would,  at  the  outside,  have  been  2,915/.  The  defendant's  witnesses 
do  not  materially  vary  this  evidence ;  but  witnesses  were  called  to  show  that 
tlie  trading  companies  in  Holland  will  not  employ  a  vessel  that  has  been 
stranded  in  the  manner  which  this  ship  was  stranded,  however  perfectly  she 
might  have  been  repaired ;  and  that  this  circumstance  affects  her  value  in  Hol- 
land. 

The  Chief  Justice,  in  summing  up,  told  the  jury  "that,  in  considering 
whether  this  was  the  case  of  an  average  or  a  total  loss,  they  ought  not  to  take 
into  account  the  value  in  the  policy.  He  also  told  them  that  in  considering  the 
same  (juestion,  they  ought  to  look  at  all  the  circumstances  attending  the  ship, 
and  to  judge  wliether,  under  all  those  circumstances,  a  prudent  owner,  if  unin- 
sured, would  have  declined  to  repair  the  ship :  and,  if  so,  they  might  find  it  a 
case  of  total  loss. 

"To  this  charge  of  the  Chief  Justice  two  objections  were  taken,  and  are 
made  the  subject  of  this  bill  of  exceptions.      The  first  is,  that  he  ought  to  have 


(a)  2  Scott's  N.  R.  752. 


TOTAL    LOSSES    AND    ABANDONMENT.  219 

told  the  jury  that,  in  detcriiiininjr  whetlior  the  loss  was  total,  they  ought  to  take 
into  their  consideration  the  estimated  value  of  the  ship  in  the  policy. 

"I  am  not  aware  of  any  case  or  principle  in  the  law  of  insurance  which 
makes  the  estimated  value  in  the  policy  a  circumstance  on  whicli  tiie  question 
of  total  or  average  loss  ought  to  turn.  The  agreed  value  in  the  policy  of  the 
subject  ^insured  is  intended  to  save  the  expense  and  doul)t  that  ^  gy  -, 
may  attend  the  investigation  of  value,  as  aflecting  tlie  quantum  of  L  J 

compensation  only.  It  may  operate,  according  to  events,  to  tlio  advantage  or 
detriment  of  either  party  ;  and,  where  no  fraud  exists,  both  are  bound  by  it. 
We  are  of  opinion  that  there  is  no  ground  for  the  first  exception. 

"The  second  exception  is,  that  the  Chief  Justice  ought  not  to  have  directed 
the  jury  to  take  into  their  consideration  all  the  circumstances  that  aflectcd  the 
ship ;  and  that  he  ought  to  have  instructed  them  to  lay  entirely  out  of  their 
consideration  the  national  character  of  the  ship,  and  the  consequences  resulting 
therefrom. 

"We  cannot  agree  to  the  propriety  of  this  exception.  The  Chief  Justice 
has  laid  down  the  usual  and  recognized  rule,  that  the  jury  ought  to  consider 
whether  under  all  the  circumstances  attending  the  ship,  a  prudent  owner,  if 
uninsured,  would  have  repaired  the  vessel.  Now,  to  the  value  of  the  repairs 
must  be  added  to  her  value  as  she  lay  in  the  dock,  that  is,  to  4,615/.  must  be 
added  700/.,  making  5,31.5/.  as  the  cost.  Upon  which  the  Butch  witnesses 
say  her  value  in  Ho/land  would,  on  the  outside,  not  have  exceeded  2,915/. 
The  English  witnesses  make  the  amount  of  the  repairs  less :  and  they  say, 
had  she  been  a  British  ship,  with  a  British  register,  she  would  have  been 
worth  more  than  the  repairs ;  and  that,  in  that  case,  it  would  have  been  the 
interest  of  British  owners  to  have  repaired  her;  implying  that,  not  having  a 
British  register,  her  value  would  not  have  equalled  the  repairs,  and  that  it 
would  not  iiave  been  prudent  in  the  plaintiffs  to  have  repaired  her.  Now,  the 
effect  of  this  evidence  is,  tliat  the  ship,  when  repaired,  would  not  have  been 
worth  the  value  of  her  repairs  either  in  England  or  in  Holland.  It  does  not 
appear  that  she  would  have  been  worth  more  any  where  else.  Is  it,  then,  to 
be  contended,  that  the  jury  are  not  to  attend  to  the  circumstances  of  the  value 
of  the  ship  when  repaired.'^  Has  it  ever  been  doubted  that  the  value  of  a  ship 
when  repaired  is  an  important  criterion  to  determine  whether  she  ought  to  be 
repaired  or  not  after  being  *damaged.^  or  that,  if  the  amount  of  p  *4oo  "1 
repairs  gready  exceed  the  value  they  will  confer  on  the  ship,  the  L  -^ 

assured  may  abandon,  and  claim  a  total  loss.^"  But  it  is  said  that  the  jury  have 
no  right  to  look  at  the  circumstances  that  she  was  a  Dutch  ship,  and  that  by 
the  usages  that  prevail  in  Holland  her  value,  when  fully  repaired,  would  never- 
theless, in  consequence  of  her  disaster,  be  less  than  the  amount  of  repairs.  For 
the  same  reason,  it  might  be  contended  that  the  jury  ought  to  lay  out  of  their 
consideration  that  she  was  not  a  British  ship,  and  that  therefore  her  value  in 
England,  when  repaired,  would  be  less  than  the  cost  of  repairs,  not  being 
entitled  to  a  register.  The  substantial  fact  is,  that  her  value,  when  repaired,  is 
less  than  the  cost.  The  reason  of  the  fact  is,  in  the  one  case,  the  want  of  a 
British  register;  in  the  odier,  the  usage  of  trade  in  Holland,  which  would 
prevent  any  body  from  giving  a  price  for  her  equal  to  the  repairs.  BoUi  these 
circumstances  existed  and  affected  the  ship  before  the  policy.  Surely,  it  the 
question  of  her  value  when  repaired  be  material,  the  jury  may  look  at  the  rea- 
sons which  are  alleged  to  impair  or  increase  the  value.  One  witness  says  she 
would  not  sell  in  London  for  one-half  the  cost  of  repairing  her :  another  says 
she  would  not  sell  for  half  the  cost  in  Holland.  If  this  evidence  be  admissible 
at  all,  may  not  the  witnesses  go  on  to  allege  the  reasons  of  their  opinion  in  both 
cases  .►•  Suppose  that  in  giving  evidence  of  her  value  the  witnesses  had  proved 
that,  for  different  reasons,  peculiar  severally  to  each  maritime  state  in  Europe, 


220  TOTAL    LOSSES   AND    ABANDONMENT. 

but  all  existing  at  the  time  of  the  insurance,  the  ship,  when  repaired,  could  not 
have  been  sold  at  all,  or  could  only  have  been  sold  for  a  price  next  to  nothing : 
could  it  be  gravely  alleged  that  the  jury  could  not  take  this  into  their  considera- 
tion, because  the  underwriters  know  nothing  of  the  laws  or  usages  of  other 
maritime  nations  besides  their  own?  That  proposition,  viz:  that  the  under- 
writers are  not  presumed  to  know  the  usages  or  laws  of  foreign  states,  has 
indeed  been  urged  by  the  counsel  for  the  plaintiff  in  error  beyond  what  is  con- 
r  *40l  1  ^'^^^'^'^  either  with  reason  or  practice.  The  underwriters  upon  *a 
L  -'  foreign  ship  or  a  foreign  voyage  are  presumed  to  know  the  usages 

and  the  laws  which  affect  that  ship  or  that  voyage.  But,  if  the  proposition 
were  true  to  any  extent,  it  has  no  place  in  this  argument ;  for  the  question  is 
not  about  their  knowledge,  real  or  presumed,  but  a  question  about  a  fact  which, 
whether  they  knew  it  or  not,  affects  the  value  of  the  ship.  If  indeed  the 
depreciated  value  of  the  ship  had  arisen  from  any  circumstance  occurring  after 
the  policy  was  effected,  and  wholly  unconnected  with  the  perils  insured  against, 
such  as  a  new  law  or  regulation  affecting  trade  or  shipping,  the  case  would  have 
presented  a  question  well  worthy  of  consideration,  upon  which,  however,  it  is 
unnecessary  to  offer  any  opinion.  Where  such  circumstances  occur,  it  may 
be  necessary  to  qualify  the  proposition  that,  if  a  prudent  owner,  uninsured, 
would  not  repair  the  vessel,  it  would  be  a  total  loss.  But,  as  the  case  now 
stands,  if  the  jury  are  to  lay  out  of  their  consideration  all  the  previous  circum- 
stances that  may  eventually  affect  the  value  of  a  Dutch  ship,  they  must  by  the 
same  rule  disregard  all  the  circumstances  that  may  affect  the  value  of  a  ship  of 
any  nation.  By  what  criterion,  then,  are  they  to  judge  of  the  value  of  any 
ship?  or  how  can  they  receive  any  evidence  of  the  value  at  all,  if  they  may 
not  sift  the  grounds  and  reasons  of  the  opinion  of  witnesses?  The  argument, 
pushed  to  Its  full  extent,  presents  to  them  nothing  but  a  ship  capable  of  being 
repaired  and  put  into  as  good  a  plight  to  swim  as  before,  but  abstracted  from 
all  the  circumstances  which  are  connected  with  her  and  which  affect  her  value  j 
and,  consequently,  instead  of  considering  these  circumstances,  they  ought,  upon 
a  question  whether  a  prudent  owner  would  repair,  to  turn  their  attention  to  no 
other  circumstance  but  the  cost  of  repairs,  and  the  original  value  of  the  ship 
when  insured.  Whereas  in  Milks  v.  Fletcher,  {a)  Lord  Mansfield  says,  '  If 
she  had  been  repaired  at  Neiv  Fork,  the  expense  might  have  exceeded  what 
she  would  have  sold  for  on  her  return  to  London.'  This  case,  and  all  the 
r  *402  1  others  which  *follow  on  the  same  subject,  will  be  found  to  refer  to 
'-  -J  the  actual  price  of  the  ship  when  repaired,  and  not  to  her  original 

value. 

"There  is  one  plain  way  of  considering  this  question:  If  the  underwriters 
had  accepted  the  abandonment,  would  they  have  repaired  the  ship  themselves, 
or  would  they  not  have  taken  into  consideration  that  she  was  a  foreign  ship, 
and  could  not  obtain  a  British  register ;  and  that  she  was  a  Butch  ship,  and 
could  not  be  advantageously  sold  in  Holland,  because,  under  the  circumstances, 
the  Butch  trading  companies  would  not  employ  her;  and,  finally,  that  the 
exclusive  laws  of  all  other  maritime  states  would  affect  her  value  in  each? 
And  if  they  necessarily  would  and  must  have  considered  all  these  things,  which 
would  have  led  them  to  sell  the  ship  for  700/.,  rather  than  repair  her,  the 
assured  and  the  jury  are  equally  entitled  to  take  them  into  their  consideration." 

Judgment  afTirmed. 

And  in  the  case  of  Parry  v.  Merdein,  [b)  where  a  ship,  having  goods  on 
board  on  which  an  insurance  was  effected,  was  placed  in  so  much  danger  by 
perils  of  the  sea,  that  the  crew  deserted  her,  in  order  to  save  their  lives,  and 


(a)  Doug.  235.  (J)  9  B.  &  C.  411. 


TOTAL    LOSSES    AND    ABANDONMENT.  221 

the  owners  of  the  goods,  upon  receiving  intelligence  of  this,  gave  notice  of 
abandonment;  a  few  days  afterwards,  however,  the  vessel  was  found  by  some 
fishermen,  and  towed  into  port  and  repaired,  but  the  goods,  which  were  of  a 
perishable  nature,  had  l)een  so  much  injured  by  the  salt  water,  that  they  would 
not  have  been  worth  anything  if  forwarded  to  their  place  of  destination  :  it  was 
held  that  the  assured  were  entitled  to  recover  for  a  total  loss. 

The  assured  cannot  be  allowed  to  turn  a  partial  into  a  total  loss. 

This  was  shewn  in  the  case  of  Cazalet  and  others  v.  iSV.  JJarbe,  (h)  it  was 
an  action  on  a  policy  of  insurance  upon  the  ship  Friendship^  from  Wybur^  to 
Lynn.,  subscribed  by  the  defendant  for  100/.  at  two  guineas  per  cent.  The 
defendant  *pleaded  a  tender,  and  paid  48/.  into  Court.  The  cause  p  *Af\'i  ^^ 
was  tried  at  Guildhall.,  before  Mr.  Justice  Butler,  when  a  case  L  -■ 

was  reserved  for  the  opinion  of  the  Court,  stating  that  the  damages  sustained 
by  the  ship  in  the  voyage  insured,  did  not  exceed  48/.  per  cent.,  which  sura 
the  defendant  had  paid  into  Court.  That  when  the  ship  arrived  at  the  port  of 
Lynn  she  was  not  worth  repairing.  The  question  for  the  opinion  of  the  Court 
was.  whether  the  plaintiff's  had  a  right  to  abandon? 

Mr.  Justice  JVilles. — "Tlie  question  is,  whether,  under  these  circumstances, 
the  plaintiffs  had  a  right  to  abandon,  or,  in  other  words,  whether  they  can  turn 
a  partial  into  a  total  loss.''  The  finding  of  the  jury  in  this  case  determines  the 
question,  because  it  is  expressly  found  that  the  damage  did  not  exceed  48/. 
per  cent.  The  case  then  states,  that  the  ship  was  not  worth  repairing,  but  no 
mention  is  made  of  what  was  her  real  worth;  so  that  the  remaining  materials 
of  the  ship,  if  sold,  may  make  up  the  difference  between  48/.  and  100/.  per 
cent  There  has  been  no  loss  either  of  the  ship  or  of  the  voyage  ;  but,  being 
an  old  ship,  she  suffered  so  much  that  she  M-as  not  worth  repairing.  I  cannot 
now  determine  that  there  was  a  total  loss,  when  the  jury  have  already  said 
that  there  was  only  a  loss  of  48/.  per  cent.  As  to  the  case  cited  of  Bond  v. 
Hunter.,  (a)  this  question  never  occurred  in  it.  The  action  was  brought  upon 
the  homeward-bound  policy,  and  it  was  sufficient  to  say,  that  that  policy  never 
attached,  for  the  ship  had  received  her  death's  wound  in  her  outward-bound 
voyage.  In  the  case  of  Milles  v.  Fletcher.,  a  total  end  was  put  to  the  voyage,  {b) 
In  the  other  cases,  the  questions  arose  upon  losses  which  had  happened  during 
the  several  voyages ;  here  the  voyage  has  been  performed,  and  the  ship  is 
arrived ;  and  after  the  jury  have  found  that  the  damage  sustained  did  not 
amount  to  more  than  48/.  per  cent.,  the  Court  are  precluded  from  saying  it  is 
a  total  loss." 

Mr.  Justice  Biiller. — "Nothing  can  be  better  established  *than  r-  ^.„  .  -, 
that  the  owner  of  a  ship  can  only  abandon  in  case  of  a  total  loss.  L  -J 

The  cases  which  have  been  cited  went  upon  that  ground.  In  the  case  of  Jen- 
kins v.  Mackenzie,  (o)  though  the  ship  was  brought  into  port,  yet  the  capture, 
as  between  the  assurer  and  assured,  was  a  total  loss.  But  there  is  no  instance 
where  the  owner  can  abandon,  unless  at  some  period  or  other  of  the  voyage 
there  has  been  a  total  loss.  No  such  event  has  happened  here ;  for  the  jury 
have  expressly  found,  that  the  loss  amounted  only  to  48/.  per  cent.  Even 
allowing  total  loss  to  be  a  technical  expression,  yet  the  manner  in  which  the 
plaintiff's  counsel  has  stated  it.  is  rather  too  broad.  It  has  been  said,  that  the 
insurance  must  be  taken  to  be  on  the  ship  as  well  as  on  the  voyage :  but  the 
true  way  of  considering  it  is  this  :  it  is  an  insurance  on  the  ship  for  the  voyage. 
If  either  the  ship,  or  the  voyage  be  lost,  that  is  a  total  loss ;  but  here  neither 

(b)   1  T.  R.  187. 

(a)   1  T.  K.  188,  tried  before  Lord  Mansfield  at  Guild.  1781. 

(i)    Vidi  supra,  ZIJL.  (a)  Brown's  Ap.  Ca.  141. 


222  TOTAL    LOSSES    AND    ABANDONMENT. 

is  lost.  The  case  of  Hamilton  v.  Mendez  is  decisive.  Judgment  for  the 
defendant. 

In  another  case  of  Furneaux  v.  Bradley,  {d)  an  action  was  brought  on  a 
policy  of  insurance  on  the  Prince  of  TFales,  in  port  or  at  sea,  for  six  months, 
from  tlie  18th  July,  1777.  The  ship  in  question  was  in  government  service, 
bound  from  Cork  to  Quebec.  She  arrived  there,  but  the  season  being  too  far 
advanced  before  she  was  ready  to  return,  she  was  removed  into  the  basin  :  but, 
on  the  19th  November,  she  was  driven  from  thence  by  a  field  of  ice,  and 
damaged  by  running  on  tlie  rocks.  The  condition  of  the  ship  could  not  be 
examined  till  Jlpril  following,  after  the  expiration  of  the  policy.  She  was 
then,  however,  found  to  be  bulged  and  much  injured,  but  not  thought  irrepa- 
rably so.  In  the  progress  of  the  repair,  difficulties  arose  for  want  of  materials ; 
and  the  captain,  after  consulting  the  merchants  and  agents  in  the  country,  sold 
her.  An  account  was  made  up,  charging  the  insurers  with  the  whole  amount, 
and  crediting  them  with  the  sums  for  which  the  ship  sold,  as  salvage, 
r  *Af\i\  1  \jOxA  Mansfield,  at  the  trial  said  :—"  The  great  point  in  *the 
L  J  cause  is,  whether  this  is  a  total  loss  by  this  accident.^    It  is  a  new 

question:  upon  which  I  shall  resei've  a  case  for  the  opinion  of  the  Court." 
After  argument  by  counsel  on  both  sides,  his  Lordship  said,  the  justice  of  the 
case  seemed  to  be,  that  the  loss  in  November  s\\ov\\[\  be  taken  as  an  average, 
not  a  total  one ;  and  that  the  whole  Court  were  of  opinion,  that  the  ship  should 
be  considered  as  damaged  on  the  19th  of  November,  but  not  totally  lost. 

In  a  subsequent  case,  3r Masters  v.  Shoolbred,  (o)  before  Lard  Kenyon  at 
Nisi  Prius,  it  was  held  in  an  action  on  a  policy  for  six  months,  where  the 
ship  had  been  captured  and  carried  into  Charlestown,  sold  by  the  captors,  by 
authority  of  the  French  consul  there,  and  purchased  by  the  captain  on  account 
of  the  original  owners,  that  this  was  only  to  be  considered  as  a  partial  loss, 
and  that  the  owners  could  not  abandon.  Lord  Kenyon  being  of  opinion  that 
the  captain  was  agent  for  the  owners,  recovering  the  vessel  upon  their  account, 
and  paying  a  kind  of  salvage,  the  amount  of  which  would  be  the  loss  sustained, 
and  which  only  constituted  an  average  loss.  His  Lordship,  however,  admit- 
ted, that  wlien  the  ship  had  been  captured  and  carried  into  port  in  the  enemy's 
possession,  the  assured  at  that  period  might  have  abandoned.  But  not  having 
done  so  till  the  vessel  was  recovered,  they  could  now  only  go  for  an  average 
loss. 

So  in  Fitzgerald  v.  Pole  {h)  where  a  ship  was  insured  for  a  cruise  of  four 
months,  free  from  average,  and  upon  a  special  verdict  it  appeared  that  while  the 
ship  was  on  her  cruise,  and  within  the  four  months,  the  crew  mutinied  against 
the  captain  and  his  officers,  and  by  force  carried  the  ship  to  Jamaica,  and 
before  her  arrival  there,  by  force  seized  the  boat,  fire-arms,  and  cutlasses,  car- 
ried them  ofi",  and  deserted  the  ship,  whereby  the  voyage  and  cruise  were  lost 
for  the  remainder  of  the  four  months,  but  the  ship  arrived  at  Jamaica,  though 

r  *40G  "1  "°^  ^^^^  ^^^^'^  ^^^  *^"^  ^^  ^^^  ^^^"^  months,  *the  Court  of  King's 
-^  Bench  held  that  the  assured  were  entitled  to  recover;  but  this 
judgment  was  reversed  in  the  Exchequer  Chamber,  and  the  House  of  Lords 
confirmed  the  judgment  of  reversal,  for  the  insurer  being  by  the  terms  of  the 
policy  free  from  all  average,  the  assured  could  not  be  entitled  to  recover  except 
for  a  total  loss  :  and  the  ship  being  found  by  the  special  verdict  to  be  in  good 
safety  at  her  proper  port,  at  and  after  the  end  of  the  four  months,  for  which  the 
msurance  was  made  there  could  be  no  loss. 


{d)  East,  20  Geo.  3.    Park  Ins.  365.  (n)    1  Esp.  237. 

{!>)  5  Bro.  Par.  Ca.  131;  Ambl.  214;  and  see  a  similar  case  of  Wilson  v.  Foster,  6 
Taunt.  25. 


TOTAL    LOSSES    AND    ABANDONMENT.  223 

It  has  been  settled  in  a  case  of  Manning  v.  Newnham^  {(f)  in  what  cases  a 
loss  shall  be  deemed  to  be  total,  after  an  accident  by  perils  of  the  sea.  A 
policy  was  effected  in  London  upon  the  ship  Grace,  her  "cargo  and  freight, 
at  and  from  Tortola  to  London^  warranted  to  depart  on  or  before  the  1st  of 
Augutit,  1781.  The  ship  valued  at  2,470/.,  the  freight  at  2,250/.,  and  the 
cargo  at  12.400/.,  at  a  premium  of  25  guineas  per  cent.,  to  return  10  per  cent, 
if  she  depart  the  JVent  Indies  with  convoy  for  England  and  arrives."  At  the 
head  of  tlie  subscriptions  is  tlie  following  declaration,  viz  : — on  ship,  freight,  and 
goods,  warranted  free  of  particular  average.  This  ship,  with  her  cargo,  was  a 
Dutch  prize  taken  by  a  privateer  of  Tortola,  and  was  there  condemned  : 
during  the  whole  of  licr  stay  at  Tortola,  (four  or  live  months,)  she  was  never 
unloaded.  On  the  1st  of  August  the  whole  fleet  of  merchantmen  got  under 
weigh,  under  the  convoy  of  the  Ci/c/ops,  ^c,  but  not  being  able  to  get  clear  of 
the  islands  that  day,  they  cast  anciior  during  the  night,  and  the  next  day  got 
clear  of  the  islands.  About  10  o'clock  on  the  2nd  of  August,  several  squalls 
of  wind  arose,  which  occasioned  the  ship  to  strain  and  make  water  so  fast, 
that  the  crew  were  obliged  to  work  both  pumps ;  and,  on  the  third,  the  captain 
made  a  signal  of  distress  :  in  consequence  of  which  she  was  obliged  to  return  to 
Tortola,  under  protection  of  one  of  his  Majesty's  ships.  The  captain  made 
his  protest,  and  a  survey  was  had,  by  which  the  ship  was  declared  r  ^.f. 
*unable  to  proceed  to  sea  with  her  cargo,  and  that  she  could  not  be  L  -1 

repaired  in  any  of  the  English  islands  in  the  J  Test  Indies:  and  that  many  of 
the  sugars  in  the  bilge  and  lower  tier  were  washed  out,  and  several  of  the  casks 
broke  and  in  bad  order.  The  ship  and  the  whole  of  the  cargo  were  sold 
accordingly  at  Tortola.  The  assured  claimed  a  total  loss  of  ship,  caro-o,  and 
freight,  which  the  jury  thought  right,  and  found  accordingly.  A  motion  was 
made  for  a  new  trial,  which  upon  full  consideration  was  refused. 

Lord  Mansfield,  after  stating  the  evidence,  and  tliat  his  prejudices  at  the  trial 
were  in  favour  of  the  underwriters,  proceeded  thus: — ''But,  notwithstanding 
this  inclination  of  my  opinion,  upon  full  consideration  we  think  the  jury  have 
done  right.  If  by  a  peril  insured  the  voyage  is  lost,  it  is  a  total  loss :  other- 
wise not.  (ff)  In  this  case  the  ship  has  an  irreparable  hurt  within  the  policy; 
this  drives  her  back  to  Tortola,  and  there  is  no  ship  to  be  had  there  which 
could  take  the  whole  cargo  on  board.  There  were  only  two  ships  at  Tortola, 
and  both  could  not  take  in  the  cargo.  To  show  how  completely  the  voyao-e 
was  lost,  and  that  no  ship  could  be  got,  the  assured  have  not  been  iible  to  send 
that  part  of  the  goods  which  they  purchased  forward  to  London.  It  is  admit- 
ted there  was  a  total  loss  on  tlie  freight,  because  the  ship  could  not  perform  the 
voyage.  The  same  argument  applies  to  the  ship  and  cargo.  It  is  a  contract 
of  indemnity :  and  the  insurance  is  that  the  ship  shall  come  to  London. 
Upon  turning  it  in  every  view,  we  are  of  opinion  that  the  voyage  was  totally 
lost,  and  that  is  the  ground  of  our  determination."  The  rule  was  discharged,  ib) 
This  subject  has  been  much  considered  and  discussed ;  and  the  case  of  Man- 
ning v.  Neivnham,  though  not  overturned,  has  received  a  considerable  shake. 
In  Anderson  v.  JVallis,  [c)  it  was  held  that  a  mere  retardation  of  a  voyagef 
*where  the  insurance  was  on  a  cargo,  not  of  a  perishable  nature,  ^  ^  .  '  -, 
to  another  season,  (the  voyage  being  to  Quebec)  was  not  a  ground  ^  0«  J 
of  abandonment,  (a) 


{d)  Trin.  Term,  22  Goo.  3,  Park  Ins.  368. 

(«)    But  soe  post,  p.  409,  per  Lord  Tenterdcn,  in  Doyle  v.  Dallas,  1  M.  &  R.  55. 

(b)  Sec  Wilson  v.  Royal  Exch.  Comp.  2  Camp.  623. 

(c)  2  M.  &  S.  240,  ante,  p.  359. 

(a)   In  Hunt  v.  Royal  Assurance  ('omp.  5  M.  &  S.  47,  and  ante,  p.  358,  it  was  held, 
that  the  loss  of  a  voyage  for  a  season  vyas  not  a  ground  of  abandonment  where  the  cargo 
Vol.  VII.— Q 


224  TOTAL   LOSSES   AND    ABANDONMENT. 

But  in  the  case  of  Dixon  v.  Rcid^  [h)  where  tlie  cargo  is  taken  out  of  the 
possession  of  the  assured  by  the  fraudulent  and  barratrous  acts  of  the  master 
and  mariners,  the  loss  is  total  and  the  assured  may  abandon.  Thus  in  an 
action  on  a  policy  of  insurance  on  the  ship  and  cargo  from  Sierra  Leone  to  a 
port  of  discharge  in  Great  Britain.  The  ship  sailed  from  Sierra  Leone  with 
two  hundred  and  thirty-three  logs  of  wood  on  board,  on  the  8th  3Iarch,  1820, 
but  was  barratrously  taken  by  the  crew  to  Barbadoes,  where  she  arrived  on  the 
28th  Jlpril;  and  the  ship  was  condemned  and  sold,  and  forty-seven  logs  of 
timber  were  also  sold,  to  pay  the  charges  incurred  there,  and  the  remaining  one 
hundred  and  eighty-six  logs  were  sent  home  in  another  vessel.  The  assured 
abandoned  to  the  underwriters.  The  question  was,  whether  this  was  a  total 
loss  with  benefit  of  salvage,  or  merely  an  average  loss.  For  the  underwriters, 
it  was  contended,  that  a  loss  of  the  voyage  for  a  season  by  the  perils  of  the 
sea,  was  not  a  ground  of  abandonment  where  the  cargo  was  in  safety  :  and  the 
cases  of  Anderson  v.  JVulUs  and  Hunt  v.  Royal  Exchange  Assurance  Com- 
pany were  cited  as  authorities.  But  Abbott^  C.  J.,  said,  "I  am  of  opinion 
that  this  is  a  case  of  a  total  loss  with  benefit  of  salvage.  The  case  is  plainly 
distinguishable  from  the  cases  which  have  been  cited  in  argument,  where  the 
ship  has  been  driven  out  of  her  course  by  the  perils  of  the  sea,  and  the  voyage 
thereby  retarded.  In  these  cases,  the  cargo  was  during  the  whole  time  in  the 
possession  of  the  assured.     Here,  by  the  fraudulent  barratry  of  the  master  and 

^  1  itiariners,  the  cargo  was  taken  out  of  the  ^possession  of  the  assured. 

L  -I  From  that  time  it  became  to  them  a  total  loss.     The  payment  of  the 

wages  at  Barbadoes,  and  the  sending  home  the  one  hundred  and  eighty-six 
logs,  were  not  the  acts  of  the  assured,  or  of  any  person  authorized  by  them.  I 
think,  therefore,  that  this  was  a  total,  and  not  an  average  loss." 

In  the  case  of  Gardiner  v.  Salvador,  (a)  which  was  an  action  on  a  policy 
of  insurance,  where  a  total  loss  by  perils  of  the  seas  was  alleged  in  the  decla- 
ration, it  was  proved  that  the  ship  was  driven  by  a  current  on  a  rock.  The 
captain  consulted  with  several  persons,  who  were  of  opinion  that  it  was  impos- 
sible to  get  her  off,  and  that  the  best  course  was  for  him  to  sell  her  as  she  lay, 
which  he  accordingly  did.  The  purchaser  succeeded  in  getting  her  off  in  five 
days,  and  the  whole  cost  to  him,  including  the  price  he  paid  for  the  stores, 
amounted  to  750/.  Her  value,  after  the  repairs,  was  stated  to  be  1,200/. 
Bayley,  B.,  told  the  jury,  "The  question  in  this  case  is,  whether  you  are 
satisfied  there  has  been  a  total  loss  by  perils  of  the  seas.  I  know  no  such 
head  of  insurance  law  as  loss  by  sale.  If  the  situation  of  the  ship  be  such, 
that  by  no  means  within  the  master's  reach  it  can  be  treated  so  as  to  retain  the 
character  of  a  ship,  then  it  is  a  total  loss.  If  the  captain,  by  means  within 
his  reach,  can  make  an  experiment  to  save  it  with  a  fair  hope  of  restoring  it 
to  the  character  of  a  ship,  he  cannot  by  selling  it  turn  it  into  a  total  loss." 
The  defendants  had  a  verdict. 

In  a  recent  case  of  Doyle  v.  Dallas,  (b)  tried  before  Lord  Tenterden,  at 
Guildhall,  on  a  policy  of  insurance  on  the  ship  Triton,  averring  a  total  loss 
by  perils  of  the  sea,  it  appeared  that  the  vessel,  having  been  taken  by  a  pilot  to 
the  iimer  roads  at  Buenos  Ayres,  and  anchored  there,  struck  upon  an  anchor, 
and,  in  spite  of  the  efforts  made  to  move  her,  ultimately  sunk,  and  lay  on  her 
side,  completely  under  water  at  high  tide  and  pardy  under  at  low  ebb.     The 

was  in  a  state  of  safety  and  not  of  such  a  perishable  nature  as  to  make  the  loss  of  the  voyage 
the  loss  of  the  commodity,  although  the  ship  be  incapable  of  proceeding  in  her  voyage ;  and 
sec  Barker  v.  Blakes,  9  East,  283. 

(i)  5  B.  &  C.  597. 

(a)  1  M.  &  Rob.  !  16,  and  sec  Tanner  v.  Bennett,  R.  «Sc  M.  182. 

{b)   1  M.  &  Kob.  48. 


TOTAL    LOSSES   AND    ABANDONMENT.  225 

cargo  was  almost  entirely  discharged.  The  ship  was  surveyed  by  some  cap- 
tains *of  ships,  approved  of  by  tlie  owner  and  by  Lloyd's  agent  r-  ^.,(^  -, 
at  Buenos  Aijres,  and  they  advised  tliat  she  should  be  sold,  on  the  L  J 

ground  that  the  expense  of  raising  her  would  probably  be  greater  than  she  was 
worth.  She  was  therefore  sold,  and  was  ultimately  got  off  I)y  the  purchaser, 
but  at  great  expense.  The  value  of  the  Triton  before  the  accident  was  about 
2,300/.  or  3,000/.,  the  insured  valued  was  2, .500/.  ;  the  expense  of  raising  her 
and  having  her  repaired  amounted,  in  the  whole,  to  about  1,350/.  If  she  had 
been  coppered  (which  she  ought  to  have  been  in  order  to  carry  the  cargo  in 
question)  she  would  have  cost  300/.  more.  But,  repaired  as  she  had  been, 
she  might  have  sailed  for  England  in  ballast,  or  with  some  kind  of  a  cargo; 
and  she  was  in  fact  used  by  her  owner  as  a  coasting  vessel  at  Rio  Janeiro. 
On  this  state  of  facts,  the  plaintiff  claimed  to  recover  for  a  total  loss ;  the  de- 
fendant contended  tliat  it  was  an  average  loss  only,  and  paid  into  Court  a  sum 
sufficient,  as  he  alleged,  to  cover  the  amount. 

Lord  Tentcrden,  in  summing  up  to  the  jury,  said: — "The  only  question 
is,  whether  this  amounts  to  a  total  loss.?  The  ship  is  not  boddy  and  specifi- 
cally lost;  but  circumstances  may  have  occurred  which,  according  to  the  law 
established  in  cases  of  marine  insurance,  are  equivalent  to  a  total  loss.  I  think 
the  circumstances  in  this  case  Avill  have  that  effect  if  at  the  time  of  tlie  sale 
that  measure,  on  the  sound  exercise  of  the  best  judgment,  appeared  most  bene- 
ficial to  all  parties.  It  is  not  enough  that  the  owner  acted  honesdy  in  the  sale, 
and  intended  to  do  for  the  best :  the  underwriters  are  not  liable,  unless  he 
formed  a  correct  judgment,  that  is  to  say  the  best  and  soundest  judgment  which 
could  be  formed  under  the  circumstances  which  then  existed.  Nothing  less 
than  this  will  make  a  total  loss,  while  the  ship  continues  in  existence."  His 
Lordship,  then,  after  referring  to  the  evidence  respecting  the  probability  of 
raising  the  vessel,  and  of  the  expense  of  repairing  her,  proceeded  thus : — 
"Besides  this  evidence  of  expense,  it  is  proved  that,  after  all  these  repairs, 
the  ship  was  still  unfit  to  sail  for  England  with  a  cargo  of  hides — such  a  cargo 
as  the  plaintiff  had  contracted  for.  I  do  not  think  that  *circum-  r-  ^. ., ,  -, 
stance  enough  to  justify  the  sale.     The  underwriters  do  not  under-  L  J 

take  that  the  ship  shall  be  able  to  take  this  or  that  cargo.  If  the  ship  could 
have  come  to  England  even  in  ballast,  I  think,  (certainly  with  any  cargo)  so 
that  on  her  arrival  she  would  have  been  worth  the  money  expended  on  her. 
she  ought  to  have  been  repaired  for  the  purpose.  The  loss  of  the  voyage  will 
not,  in  ray  opinion,  make  a  constructive  total  loss  of  the  ship.  Some  cases 
have  been  so  decided ;  but  as  the  thing  insured  remained  in  specie,  I  do  not 
think  that  amounted  to  a  total  loss.  The  best  thing  for  the  underwriters  must 
be  done  not  merely  for  the  owner,  and  as  they  indemnify  only  against  the  loss 
of  the  ship,  the  loss  of  the  voyage  would  not  injure  them.  Taking  all  the  cir- 
cumstances into  your  consideration,  if  you  are  of  opinion  that  the  plaintifT, 
acting  as  he  did,  exercised  a  sound  judgment  as  well  for  the  benefit  of  the 
underwriters  as  for  his  own  interest  as  owner,  and  did  what  at  the  time  was 
best  for  all  parties,  your  verdict  will  pass  for  the  plaintiff:  if  otherwise,  for 
the  defendant."  Verdict  for  the  defendant.  A  motion  was  afterwards  made 
for  a  new  trial,  which  was  refused. 

The  general  convenience  of  making  an  abandonment,  has  led  to  an  opinion 
that  it  is  more  necessary  than  it  really  is.  A  party  is  not,  in  any  case,  obliged 
to  abandon,  neidier  will  the  want  of  abandonment  oust  him  of  his  claim  for 
that  which  is  an  average  or  a  total  loss,  as  the  case  may  be.  Where  there  is 
an  abandonment,  the  risk  is  thrown  upon  the  underwriters ;  where  there  is  no 
abandonment,  the  party  takes  the  chance  of  recovering  according  to  his  actual 
loss.     Without  an  abandonment,  an  average  loss  may  be  recovered :  abandon- 


226  TOTAL    LOSSES    AND    ABANDONMENT. 

ment  is  only  necessary  to  make  a  constructive  total  loss,  {a)  But  where  the 
thing  subsists  in  specie,  and  there  is  a  chance  of  its  recovery  in  order  to  make 
a  total  loss,  there  must  be  an  abandonment,  (h) 

*The  question  as  to  the  necessity  of  making  an  abandonment  in 
L  ^^■^  J  certain  cases  in  order  to  enable  the  assured  to  recover  for  a  total 
loss,  it  has  already  been  observed,  has  been  the  subject  of  many  recent  and 
important  decisions,  by  which  the  law  appears  to  be  now  quite  settled,  (a) 

The  case  oi Mellish  v.  Andreivs^  (b)  and  MuUett  v.  Sheddcn,  (c)  just  referred 
to,  fully  support  the  doctrine  that  where  there  is  a  total  destruction  of  the  sub- 
ject-matter of  the  insurance,  no  notice  of  abandonment  is  necessary. 

So  in  the  case  of  Cambridge  v.  Anderton,  {d)  which  was  tried  before  Mbott, 
C.  J.,  at  GuildhnU,  it  appeared  that  the  ship,  whicli  was  insured  from  Quebec 
to  Bristol,  set  sail  from  Quebec,  and  about  two  hundred  and  twenty  miles  below 
Quebec,  got  upon  the  rocks  in  the  river  St.  Laivrence  in  foggy  and  tempestuous 
weather;  she  was  there  much  injured,  and  surveyed  by  experienced  persons, 
who  gave  it  as  their  opinion,  that  the  expense  of  getting  her  off  (if  it  could 
be  accomplished)  and  repairing  her,  would  far  exceed  the  value  of  her  when 
repaired.  Under  these  circumstances,  the  captain  and  the  agents  of  the  plaintiff 
sold  the  ship  with  her  certificate  of  registry.  The  purchaser  did  succeed  in 
getting  her  off,  took  her  back  to  Quebec,  and  repaired  her;  she  afterwards 
sailedon  a  voyage  to  England,  but  was  lost  in  the  Gidf  of  St.  Lawrence; 
the  plaintiff  never  gave  any  notice  of  abandonment  to  the  underwriters.  Tlie 
Lord  Chief  Justice  told  the  jury  that  if,  under  the  circumstances  in  evidence, 
they  thought  that  the  ship  was  not  repairable  at  all,  or  that  when  repaired,  she 
would  not  be  worth  the  expense  of  doing  the  repairs,  the  plaintiff  was  entitled 
to  recover  for  a  total  loss,  but  that  otherwise  they  could  claim  for  an  average 
loss  only.  The  jury  found  a  verdict  for  a  total  loss.  Upon  a  motion  for  a 
new  trial,  Abbott,  C.  J.,  said,  "If  the  subject-matter  of  the  insurance  remained 
a  ship,  it  was  not  a  total  loss,  but  if  it  was  reduced  to  a  mere  congeries  of 
r  -4.11  ~\  P^^i^'^^'  t'^^  vessel  was  a  *mere  wreck,  the  name  which  you  think 
L  J  fit  to  apply  to  it  cannot  alter  the  nature  of  the  thing."  [a) 

And  the  same  learned  Judge  expresses  himself  in  nearly  the  same  terms  in 
the  case  of  Allen  v.  Sugriie,  (b)  which  was  an  action  of  a  policy  of  insurance 
on  a  ship  valued  at  2,000/.,  and  averring  a  total  loss  by  perils  of  the  sea.  The 
ship  had  been  stranded  at  the  entrance  of  the  Hzdl  dock ;  it  was  proved  that  it 
would  have  cost  1,450/.  to  have  repaired  her,  and  when  repaired,  she  would 
not  have  been  worth  that  sum.  It  was  contended  for  the  defendants,  that  the 
plaintiff  could  not  recover  for  a  total  loss,  as  in  that  case  they  would  receive 
2,000/.,  whereas  the  expense  of  repairing  the  damage  would  not  be  more  than 
1,450/.,  and  that  as  the  defendant  had  paid  sufliicient  into  Court  to  recover  that 
sum,  the  plaintiff  should  be  nonsuited.  On  the  m\enisi.  Lord  Tenter  den  thus 
expresses  himself,  "I  am  of  opinion  Uiat  the  question  whether  the  loss  sus- 
tained is  an  average  or  a  total  loss,  is  precisely  tlie  same  when  the  value  of  the 
ship  has  been  mentioned  in  the  policy,  and  when  that  has  been  left  open.  If 
the  value  has  not  been  mentioned,  it  must  be  ascertained  by  evidence;  if  it  has 
been  mentioned,  then  all  further  inquiry  is  unnecessary,  as  the  parties  have 


(«)  By  I/onl  Ellcnborough  in  Mellish  v.  Andrews,  15  East,  14,  and  iu  Mullettv.  Shed- 
den,  13  East,  309. 

(Ij)   By  Lord  Ellcnborough  in  Tunno  v.  Edwards,  13  East,  491. 

(a)  Sec  llio  judgment  in  Koux  v.  Salvador,  4  Scott,  p.  32,  and  ante,  pp.  149,  353,  355, 
of  this  Treatise.  (//)    15  East,  13. 

(c)   13  Ea.st,  304.  (d)  2  B.  «fe  C.  691. 

(«)  And  sec  Robcrt.son  v.  Clarke,  1  Bing.  445. 

(i)  8  B.  Si.  C.  501. 


TOTAL    LOSSES    AND    ABANDONMENT.  227 

agreed  as  to  what  shall,  in  the  event  of  loss,  be  considered  the  value.  If  under- 
writers find,  by  experience,  the  practice  of  enterinj^  into  valued  policies  is  inju- 
rious to  them,  they  may  very  easily  avoid  it  for  the  future.  Then  was  this  a 
total  loss.''  The  jury  have  ibund  that  the  ship  was  so  much  damaged  as  not  to 
be  worth  repairing,  or  in  other  words--,  that  although  the  materials  of  tlie  ship 
remained,  the  sliip  itself  did  not.  That  in  my  mind  constitutes  a  total  loss, 
and  it  would  be  strange  if  this  were  otherwise,  for  the  ship  ceased  to  exist  for 
all  useful  purposes  as  a  ship.  A  total  loss  of  the  ship,  therefore,  ought  to  be 
paid  for,  and  that  is  the  sum  agreed  upon  as  the  estimated  value  of  the  ship, 
minus  the  value  of  the  materials  saved."* 

The  case  of  Hadkinson  v.  Robinson,  (c)  which  is  a  leading  r-  ^a,a  -> 
*case  on  the  subject,  is  deserving  of  being  mentioned.     It  was  an  L  -• 

action  on  a  policy  of  insurance  on  pilchards,  on  board  the  Paxora,  at  and  from 

'Case  of  Manning  and  another  v.  Irving  (a). — A  policy  was  effected  in  June,  1843, 
upon  a  ship  (originally  built  for  the  East  India  Company's  service)  valued  at  17,500/.  at 
and  from  China  to  Madras,  and  back  to  China.  The  vessel  was  purchased  by  the  plaintiffs 
in  1839  for  11,000/.  During  the  voyage,  the  vessel  was,  by  a  peril  insured  against,  dis- 
masted; and  by  the  wreck  of  the  masts  and  rigging  falling  over  the  ship's  sides  and  striking 
under  her  hull,  her  copper  and  sheathing  were  much  injured.  The  necessary  expenditure 
to  repair  the  damages  so  sustained  by  the  .ship,  and  to  refit  her  masts,  sails  and  spars, 
rigging,  and  sheathing,  &c.,  so  as  to  render  her  seaworthy  for  the  voyage  insured,  would 
have  amounted  to  not  less  than  10,500/. ;  and,  if  such  expenditure  had  been  incurred,  the 
ship  would  have  been  worth  a  sum  not  exceeding  9,000/.  During  the  hurricane  the  vessel 
made  no  more  water  than  usual;  and,  upon  examination  of  the  ship  at  Calcutta,  the  hull 
did  not  appear  to  be  injured,  and  the  ship  appeared  to  be  sound  in  ail  other  respects  than 
those  above  mentioned.  Held,  upon  a  special  case  reserved,  that  the  underwriters  were 
liable  as  for  a  total  loss. 

This  was  an  action  of  assumpsit  brought  by  the  plaintiffs,  managing  owners  of  a  vessel 
called  the  General  Kyd,  against  the  defendant,  one  of  the  directors  and  chairman  of  the 
Alliance  Marine  Insurance  Company,  under  the  provisions  of  an  act  of  Parliament,  making 
the  company  liable  to  be  sued  in  the  name  of  their  chairman.  The  first  count  was  upon  a 
policy  of  insurance  for  3,000/.,  duly  subscribed  on  behalf  of  the  company  upon  ship  valued 
at  17,500/.,  at  and  from  China  to  Madras,  while  there,  and  back  to  China,  not  east  of 
Hong  Kong,  with  leave  to  call  at  the  Straits;  and  averred  a  loss  by  perils  of  the  sea.  The 
second  count  was  for  money  paid,  the  third  for  money  had  and  received,  the  fourth  for 
interest,  the  fifth  on  an  account  stated.  The  defendant  pleaded  to  the  first  count,  that  the 
vessel  was  not  wholly  lost,  in  manner  and  form,  &c.,  and  to  the  last  four  non  assumpsit; 
upon  both  of  which  pleas  issue  was  joined. 

At  the  trial,  before  Crcsswell,  J.,  at  Guildhall,  at  the  Sittings  afler  Trinity  Term,  1844, 
a  verdict  was  found  for  the  plaintiffs,  damages  3,000/.,  subject  to  the  following  case: — 

The  plaintiff's  vessel,  the  General  Kyd,  of  1318  tons,  had  been  originally  built  for,  and 
employed  in,  the  trade  of  the  East  India  Company,  whilst  the  Company  retained  its  trading 
privileges,  and  had  been  built  at  a  very  great  expense;  and  in  consequence  of  the  Company 
ceasing  to  trade,  upon  the  alteration  of  their  charter,  the  General  Kyd,  and  all  other  ships 
of  the  same  class,  ceased  to  be  in  demand. 

The  plaintiffs  purchased  the  vessel  in  1839,  for  11,000/. 

The  policy  in  question  was  effected  by  the  plaintiffs  in  June,  1843;  and  at  that  time, 
according  to  advices  from  the  purser  of  the  ship,  then  in  China,  the  cost  of  the  vessel  to 
them,  including,  however,  wages  and  other  matters  not  constituting  part  of  the  permanent 
value  of  the  ship,  amounted  to  17,500/.,  tlie  value  in  the  policy. 

No  insurance  was  eflccted  by  the  plaintiffs  on  the  freight  of  the  said  ship  on  the  voyage 
insured. 

The  vessel,  upon  former  voyages,  had  been  frequently  insured  at  the  same  or  a  higher 
valuation,  and  was  known  to  the  defendants  to  have  been  in  the  service  of  the  East  India 
Company. 

The  ship  sailed  on  the  voyage  insured,  from  Singapore,  on  the  25th  of  April,  1843,  and 
in  the  course  of  such  voyage  arrived  in  the  Madras  Roads  upon  the  18th  of  May  following, 

(a)  1  Common  Bench  R.  168.  (c)  3  Bos.  &  Pull.  388. 


228  TOTAL   LOSSES   AND    ABANDONMENT. 

Mounfs  Bay,  in  Cornwall,  to  Naples,  with  leave  to  join  the  convoy  at  Naples 
or  elsewhere.  The  policy  contained  the  usual  memorandum,  exempting  the 
underwriter  from  average  losses  on  fish,  &c.,  unless  general,  or  the  ship  be 
stranded.     The  declaration  stated  the  loss  to  be,  "that  after  the  loading  of  the 

for  the  purpose  of  taking  in  a  cargo  of  cotton,  which  was  purchased  and  provided  for  ship- 
ment on  behalf  of  her  owners. 

On  the  2 1st  of  May,  1843,  whilst  so  lying  in  the  Madras  Roads,  the  vessel  was  carried 
out  to  sea  in  ballast  by  a  violent  hurricane;  and  on  the  following  day,  during  the  gale,  and 
whilst  still  at  sea,  she  was  dismasted,  and  by  the  wreck  of  the  masts,  sails,  and  rigging 
falling  over  the  ship's  sides,  and  getting  and  striking  under  the  hull,  the  copper  and  wood 
sheathing  on  the  bottom  of  the  vessel  was  much  injured. 

In  order  to  save  the  vessel,  and  for  the  preservation  of  the  crew,  she  was  necessarily 
carried  into  Calcutta. 

The  necessaiy  expenditure  to  repair  the  damages  sustained  by  the  ship,  and  to  refit  her 
masts,  sails,  and  spars,  rigging,  copper  and  wood  sheathing,  and  other  things,  so  as  to 
render  her  seaworthy  for  the  voyage  in  question,  would  have  amounted  to  a  sura  of  not 
less  than  10,. 500/. 

If  such  expenditure  had  been  incurred,  the  ship  would  have  been  worth  (either  in  Eng- 
land or  Calcutta)  a  sum  not  exceeding  9,000/. ;  and  such  would  have  been  her  marketable 
value  if  put  up  for  sale  in  that  state  of  repair,  either  at  the  period  of  effecting  the  policy, 
or  just  before  the  damage,  or  at  the  time  at  which  the  repairs  would  have  been  completed. 

During  the  hurricane  the  vessel  made  no  more  water  than  usual ;  and,  upon  examination 
of  the  ship  at  Calcutta,  the  hull  did  not  appear  to  be  injured,  and  the  ship  appeared  to  be 
sound  in  all  other  respects  than  those  above  mentioned. 

The  vessel,  upon  her  arrival  in  Calcutta,  was  put  into  dock  for  survey  and  examination. 
She  was  surveyed  four  times,  on  the  several  dates  following: — 2nd  of  June,  9th  of  June, 
3rd  of  July,  and  7th  of  July,  1843. 

Upon  the  survey  held  on  the  2nd  of  June,  the  surveyors  recommended  that  the  vessel 
should  be  docked  for  further  examination,  and  in  the  meantime  spars  should  be  procured 
for  masts,  yards,  &c.,  on  the  most  reasonable  terms;  also  that  estimates  should  be  obtained 
from  the  various  ship-chandlers  and  others  for  the  supply  of  the  stores  required  to  replace 
the  General  Kyd  in  the  same  position  as  before  the  hurricane. 

Upon  the  survey  held  on  the  3rd  of  July,  1843,  the  surveyors  recommended  the  copper 
and  sheathing  to  be  stripped  off  the  bottom,  and  that  it  should  be  dubbed  down  bright  from 
the  gunwale  to  the  keel,  to  ascertain  whether  or  not  the  ship  had  received  any  further 
injury  in  her  bottom  from  the  wreck  of  the  masts. 

Upon  the  survey  held  on  the  7th  of  July,  1 843,  the  surveyor  reported  that  the  ship  had 
experienced  very  severe  weather,  having  been  blown  out  of  the  Madras  Roads,  after  which 
she  encountered  one  of  those  violent  gales  of  wind,  or  hurricanes,  which  prevail  in  the  Bay 
of  Bengal  during  the  month  of  May,  which  reduced  the  hull  to  a  complete  wreck,  the  main- 
mast and  mizen-mast  breaking  off  below  the  hounds,  the  fore-mast  and  bowsprit  badly 
sprung ;  in  fact  so  crippled  was  the  ship  in  masts  and  yards  as  to  require  nearly  the  whole 
of  them  to  be  renewed;  that  the  examination  of  the  hull  which  he  had  been  enabled  to 
make  on  the  upper  deck,  gun  or  middle  deck,  orlop,  and  hold,  shewed  that  the  said  ship 
had  not  worked  on  her  fastenings;  that  the  closeness  of  all  the  butts,  scarples,  and  edges 
of  the  planks,  shewed  not  the  slightest  movement;  and  that  the  beam-ends,  knees,  and 
bolts  seemed  to  be  nearly  in  the  same  state  as  when  first  forged  and  fastened ;  that  equally 
so  was  the  hull  on  the  outside,  as  regarded  the  topsides  and  wales;  and  that,  judging  from 
the  bottom  plank,  where  the  copper  and  sheathing  had  been  torn  off  by  the  wreck  of  the 
masts,  the  seams  were  in  a  most  perfect  state  ;  that  the  keel  of  the  said  ship  was  remarkably 
straight  for  a  vessel  of  her  age,  having  only  four  inches  camber  in  thirty  feet  from  the  fore 
post;  that  aft,  from  that  length  to  the  stern  post,  it  formed  nearly  a  horizontal;  a  similar 
sized  ship  built  in  Europe  of  oak  and  fir,  tree-nailed  fastened,  would  in  all  probability, 
when  from  twelve  to  fifteen  years  old,  have  cambered  fifteen  to  eighteen  inches.  The 
blocks  were  not  cut  into,  which  shewed  that  the  keel  had  not  moved  since  the  said  ship  was 
docked. 

The  said  lust-mentioned  surveyor  recommended  that  the  bottom  of  the  said  ship  should 
be  stri[)p(!(l,  the  copper  and  sheathing  being  much  injured  by  the  masts,  thoroughly  over- 
hauled, duhbcd  bright,  and  if  it  proved,  as  he  expected,  free  from  decay,  it  should  be  well 
caulked,  felted,  sheathed,  and  coppered;  that  the  channels  and  chain -plates  should  be  partly 
renewed  and  repaired ;  that  the  masts  and  yards  should  be  completed,  and  the  wale-s,  top- 
sides,  and  decks  caulked,  with  sundry  trifling  jobs  to  be  done  about  the  hull ;  after  which 


TOTAL    LOSSES   AND    ABANDONMENT.  229 

said  pilchards  on  board,  &c.  the  said  ship  or  vessel  with  the  pilchards,  &c., 
&c.,  departed  and  set  sail  from  the  said  port  of  Penzance  aforesaid,  on  her  said 
intended  voyage  in  the  said  writing  and  policy  of  insurance  mentioned,  and 
afterwards,  and  whilst  the  said  ship  was  so  sailing  and  proceeding  on  her  said 

the  said  last-mentioned  surveyor  reported  that  the  said  ship,  as  regarded  hull,  masts,  and 
yards,  would  be  fit  for  sea,  and  a  good  sea  risk  to  any  part  of  the  world. 

The  said  ship  was  l)uilt  at  Calcutta  about  thirty  years  before  that  time,  of  the  best  mate- 
rials, and  was  most  expensively  fastened  with  copper  from  the  keel  to  the  wales,  and  in  the 
upper  works  with  iron. 

Estimates  were  procured  after  the  surveys,  of  the  costs  of  the  necessary  repairs  and  refit- 
tings,  to  render  the  ship  seaworthy  as  before  mentioned ;  and  such  cost  would  have  amounted 
to  the  sum  before  mentioned. 

After  such  repairs  the  vessel  would  not  have  been  a  worse  ship  than  before,  unless  it  had 
been  discovered  in  the  course  of  such  repairs  that  the  vessel  had  received  any  further  injury 
in  her  bottom  from  the  wreck  of  the  masts.  Some  materials  for  repairing  the  vessel  were 
procured  by  the  ma.ster,  and  some  repairs  were  commenced,  but  were  afterwards  discon- 
tinued. Those  repairs  were  principally  for  the  purpose  of  protecting  the  vessel  from  sus- 
taining additional  damage ;  and  masts,  spars,  sails,  and  other  articles  were  also  purchased 
for  the  purpose  of  proceeding  to  efiective  repairs. 

On  the  10th  of  October,  1843,  on  receipt  of  information  of  the  extent  of  damage  and 
repairs  required,  (as  stated  in  the  surveys  and  estimates)  an  abandonment  of  the  vessel  was 
dulv  made  to  the  underwriters,  which  the  underw^riters  refused  to  accept. 

'i'he  vessel  has  not  since  been  repaired. 

The  question  for  the  opinion  of  the  Court  is,  whether,  under  the  circumstances,  the 
defendants  were  liable  as  for  a  total  loss.  If  the  Court  shall  be  of  that  opinion,  interest  is 
to  be  added  to  the  amount,  if  the  Court  shall  be  pleased  to  put  itself  in  the  situation  of  a 
jury,  and  shall  think  it  fit  that  interest  should  be  allowed.  If  the  Court  shall  be  of  opinion 
that  the  loss  was  an  average  loss,  and  not  a  total  loss,  the  verdict  is  to  be  entered  for  an 
amount  of  damages  to  be  estimated  out  of  Court,  in  a  mode  agreed  upon  between  the  par- 
ties. Either  party  is  to  be  at  liberty,  upon  the  argument,  to  refer  to  the  pleadings,  and, 
with  the  permission  of  the  Court,  to  turn  the  case  into  a  special  verdict. 

Sir  T.  Wilde,  Serjeant,  (with  whom  was  Greenwood,)  for  the  plaintiffs,  (a)  Upon  the 
facts  stated  in  the  special  case,  the  defendants  are  liable  as  for  a  total  loss.  It  appears  that, 
in  the  course  of  the  voyage,  the  vessel,  by  a  peril  insured  against,  sustained  damage  to  such 
an  extent,  that  she  was  no  longer  capable  of  being  used  as  a  ship  without  an  outlay  of 
10,.'J0(i/.,  which  would  exceed  by  1,500/.  her  value  when  repaired.  It  has  been  so  repeat- 
edly decided  that  the  underwriters  are  liable  as  for  a  total  loss,  where  the  vessel  is  by  perils 
of  the  sea  reduced  to  such  a  state  as  to  be  no  longer  available  as  a  ship  but  at  an  expense 
which  no  prudent  owner,  if  uninsured,  would  incur,  that  it  would  be  idle  to  argue  the  point 
in  a  Court  of  co-ordin.ite  jurisdiction.  The  principal  case  upon  the  subject  is  that  of  Allen 
v.  Sugrue,  {b)  to  which  may  be  added  Young  v.  Turing,  (c)  Nor  does  the  circumstance 
of  the  value  being  stated  in  the  policy  make  any  difference:  the  cases  of  Allen  v.  Sugrue 

and  Young  v.  Turing  both  arose  upon  valued  policies.      [Maule,  J "The  value  stated  in 

the  policy  can  have  no  bearing  on  the  question."]     The  Court  called  upon 

Chaniiell,  Seijeant,  (with  whom  was  L.  J.  Brown,)  for  the  defendant.  Admitting  the 
force  of  the  decisions  adverted  to,  the  defendant  is  desirous  of  reviewing  them  before  a  Court 
of  error.  [Creswell,  J.,  referred  to  Cambridge  v.  Anderton,  {d)  and  Sir  T.  Wilde  to  Read 
V.  Bonham,  (e)  as  authorities  for  the  same  position.]  In  Allen  v.  Sugrue,  the  vessel,  which 
was  valued  in  the  policy  at  2,000/.,  received  damage  by  perils  of  the  sea,  which  could  have 
been  repaired  for  1,4.50/.  ;  but  the  jury  found  that  she  was  not  worth  repairing;  and  it  \yas 
held  that  this  was  a  total  loss,  and  that' the  assured  were  entitled  to  recover  the  sum  at  which 


(rt)  The  plaintiff's  point  (more  general  than  the  statement  of  the  question  at  the  conclu- 
sion of  the  case)  marked  for  argument  was,  "that,  under  the  circumstances  set  forth  in  the 
case,  there  was  a  total  loss,  and  that  the  defendant  was  liable  upon  the  policy  effected  with 
the  company  as  for  a  total  loss." 

(b)  8  B.  &  C.  561 ;  3  Mann.  &  R.  9.     Ante,  p.  413. 

(c)  2  Mann.  &  Gr.  593 ;  2  Scott,  N.  R.  752.     Ante,  p.  397. 

\d)  2  B.  &  C.  691 ;  4  D.  &  R.  203 ;  R.  &  M.  60 ;   1  C.  &  P.  213.     Ante,  p.  412. 
(e)  3  Brod.  &  Bingh.  147;  6  J.  B.  Moore,  397. 


230  TOTAL   LOSSES   AND    ABANDONMENT. 

voyage,  and  before  her  arrival  at  Naples,  to  wit,  on,  &c.,  the  port  of  Naples, 
aforesaid,  was,  by  the  persons  exercising  the  powers  of  government  in  the 
kino-dom  of  Naples,  shut  against  all  ships  the  property  of  any  of  the  subjects 
of  our  Lord  the  King,  or  sailing  under  the  colours  of  our  Lord  the  King,  and 
against  all  merchandise,  the  property  of  any  such  subjects,  carried  in  such 
ships,  under  the  pain  of  such  ships  and  merchandise  being  confiscated  by  the 
persons  exercising  the  powers  of  government  in  the  kingdom  of  Naples,  where- 
by the  said  ship,  with  the  said  pilchards  on  board,  (the  said  ship  being  then 
and  there  the  property  of  subjects  of  our  Lord  the  now  King,  and  sailing  under 
the  colours  of  our  Lord  the  now  King,  and  the  pilchards  being  then  and  there 
the  property  of  the  plaintiff',  who  was  then  and  there  a  subject  of  our  Lord  the 
now  King,)  was  then  and  there  prevented  from  pursuing  her  voyage  to  Naples 
aforesaid,  and  the  voyage  was  thereby  then  and  there  wholly  defeated  and  lost, 
and  the  pilchards  then  and  there  became  of  no  value  to  the  plaintiff."     At  the 

the  vessel  was  valued  in  the  policy.  And  in  Young  v.  Turing,  the  ship  Eliza,  (Dutch 
built)  valued  at  8,000/.  was  insured  at  and  from  Rotterdam  to  Java  and  Sumatra,  and 
back  again  to  a  port  in  Holland  ;  in  the  course  of  her  voyage  she  was  stranded  on  the  Good- 
win Sands,  and  plundered ;  she  was  afterwards  removed,  and  ultimately  brought  to  London, 
and  notice  of  abandonment  given  to  the  underwriters:  it  appeared,  that  just  before  the 
Eliza  was  cast  away,  she  was  worth  5,833/.  ;  that  her  value  as  she  lay  was  700/. ;  and  that 
the  salvage  was  420/. ;  it  was  proved  by  English  witnesses  that  the  expenses  of  repairing 
the  ship  in  England  would  be  4,615/.  ;  that  if  she  had  been  entitled  to  a  British  register,  she 
would  have  been  worth,  when  repaired,  from  4,500/.  to  4,700/. ;  and  that,  if  she  had  been 
a  British  ship,  it  would  have  been  prudent  for  a  Briti.sh  owner  to  repair  her:  it  was  proved 
by  Dutch  witnesses,  that  the  expense  of  repairing  her  in  Holland  would  have  been  far 
greater,  and  that  her  value  when  repaired  in  Holland  would  not  have  exceeded  2,915/.:  it 
was  also  proved  that  the  trading  companies  in  Holland  vi'ill  not  employ  a  vessel  that  has 
been  stranded  in  the  manner  in  which  the  Eliza  was  stranded,  however  perfectly  she  may 
have  been  repaired,  and  that  this  circumstance  would  affect  her  value  in  Holland.  The 
Judge,  in  his  summing  up,  told  the  jury  that,  in  considering  whether  this  was  the  case  of 
a  partial  or  a  total  loss,  they  ought  not  to  take  into  account  the  value  in  the  policy  ;  and  that, 
in  considering  the  same  question,  they  ought  to  look  at  all  the  circumstances  attending  the 
ship,  and  to  judge  whether,  under  all  those  circumstances,  a  prudent  owner,  if  uninsured, 
would  have  declined  to  repair  the  ship;  and,  if  so,  they  might  find  it  a  case  of  total  loss. 
Upon  a  bill  of  exceptions  tendered,  this  direction  was  held  to  be  correct.  In  the  present 
case,  the  Court  is  asked  to  decline  to  infer  from  the  facts  stated,  that  a  prudent  owner,  if 
uninsured,  would  not  have  repaired  the  vessel.  It  appears  that  the  ship  was  dismasted  in 
a  hurricane,  and  that,  though  somewhat  damaged  in  her  sheathing,  her  hull  was  altogether 
uninjured;  and  that  the  expense  of  repairing  her  would  exceed,  by  1,500/.,  her  marketa- 
ble value  when  repaired.  I3ut  it  also  appears  that  the  plaintiffs  had  bought  her  for  1 1,000/. 
And  it  may  be  that  a  vessel  is  worth  more  to  her  owners  than  her  mere  market  value.  It 
is  also  to  be  observed,  that  the  plaintiffs  themselves  have  invariably  treated  her  as  worth 
more  than  10,500/.  :  and  she  was  valued  in  the  policy  at  17,500/.,  at  which,  or  a  higher 
value,  she  had  frequently  before  been  insured.  There  is  no  suggestion  by  any  surveyor  that 
it  would  not  have  been  prudent  to  repair  her.  [Cresswell,  J.  —  "The  question  is,  not 
whether  or  not  tlie  plaintiffs  would,  if  uninsured,  have  repaired  her,  but  v/hether  a  prudent 
owner  would  have  done  so,  abstractedly  from  any  particular  fancy.  Now,  a  prudent  owner 
could  hardly  be  expected  to  lay  out  10,500/.  to  get  a  ship  worth  only  9,000/."]  In  Young 
V.  Taring  the  peculiar  position  of  the  assured  was  taken  into  account.  So,  here,  taking 
the  peculiar  character  of  this  ship  into  consideration,  the  Court  will  draw  such  inference  as 
they  may  think  reasonable.  [Maule,  J. — "It  is  a  common  course  in  special  cases  to  pro- 
vide that  the  Court  shall  be  at  liberty  to  draw  such  inferences  from  the  facts  stated  as  the 
jury  might  have  drawn ;  and  that  perhaps  somewhat  enlarges  their  power.  But  I  appre- 
hend that  the  Court  may  in  all  cases  draw  such  inferences  as  are  reasonable,  and  obviously 
arise  out  of  the  facts  that  are  stated.  No  person  at  all  acquainted  with  the  doctrine  of  Allen 
V.  Sugrue  could  hesitate  to  pronounce  tliis  a  case  of  total  loss."] 

Pir  Curiuin.  There  can  be  no  doubt  that  this  case  falls  within  the  principle  of  those 
that  have  been  adverted  to;  and,  consequently,  the  plaintiffs  must  have  judgment.  Judg- 
ment for  the  plaintiffs. 


TOTAL   LOSSES   AND    ABANDONMENT.  231 

trial  before  Lord  Jllvanley,  it  appeared,  amongst  the  other  facts,  that  after  this 
vessel  sailed  from  Liabon,  in  tlic  prosecution  of  her  voyage,  she  received  intel- 
ligence that  English  vessels  were  excluded  from  all  the  ports  of  Naplen  ;  and 
that  afterwards  die  commander  of  the  convoy  ordered  that  all  vessels  destined 
for  Naples  or  Sicili/  were  to  proceed  to  Fort  Ma/ion,  'where  the  r-  ^^^^^  -, 
report  respecting  the  state  of  the  ports  of  Naples  was  confirmed.  ^ 
That  in  consequence  of  this  a  survey  of  the  cargo  was  taken,  under  tlie  direc- 
tion of  the  Vice  Admiralty  Court  of  Minorca,  and  sold  there  for  a  small  sum 
of  money.  The  assured  abandoned  to  the  underwriters,  who  refused  to  accept 
it.  The  jury  found  a  verdict  for  the  underwriters,  to  set  aside  wliich  a  motion 
was  made  inthe  following  Term.  After  argument  at  the  Bar  and  time  taken 
to  deliberate. 

Lord  Alvanletj  delivered  the  judgment  of  the  Court,  confirming  the  verdict 
of  the  jury.  His  liordship  said, — "The  question  is,  whether  the  circum- 
stances which  liave  happened  amount  to  a  total  loss  within  the  policy.?  The 
policy  includes  capture  and  detention  of  princes;  and  any  loss  which  neces- 
sarily arises  from  such  acts  is  a  loss  within  the  policy.  But  it  has  appeared 
to  me  that,  where  underwriters  have  insured  against  capture  and  restraint  of 
princes,  and  the  captain  learning  that,  if  he  entered  the  port  of  his  destination, 
the  vessel  will  be  lost  by  confiscation,  avoids  that  port,  whereby  the  object  of 
the  voyage  is  defeated,  such  circumstances  do  not  amount  to  a  peril  operating 
to  the'  destruction  of  the  thing  insured.  If  they  could,  the  same  principle 
would  have  applied  in  case  information  had  been  received  at  Falmouth  that  the 
ship  could  not  safely  proceed  to  Naples.  In  Goss  v.  Withers,  Hamilton  v. 
Mendez,  and  Milles  v.  Fletcher,  the  principles  by  which  a  total  loss  is  to  be 
ascertained  are  clearly  laid  down.  It  is  there  said,  'That,  if  the  voyage  be  lost 
or  not  worth  pursuing,  if  the  salvage  be  high,  if  further  expense  be  necessary, 
if  the  insurer  will  not  at  all  events  undertake  to  bear  that  expense,  &c.,  the 
insured  may  abandon,  notwithstanding  a  recapture.'  But  the  doctrine  thus  laid 
down  is  only  applicable  to  cases  in  which  the  loss  is  occasioned  by  a  peril 
insured  against,  which,  as  it  appears  to  me,  must  be  a  peril  acting  upon  the 
subject  immediately,  and  not  circuitously,  as  in  the  present  case.  Without 
entering,  therefore,  into  the  question  which  has  arisen  in  another  case,  (a)  I 
think  that  the  detention  of  the  cargo  on  board  the  *ship  in  a  neiitral  p  ^^^^  -i 
port,  in  consequence  of  the  danger  of  entering  the  port  of  destina-  L 
tion,  cannot  create  a  total  loss  within  the  meaning  of  the  policy,  because  it  does 
not  arise  from  a  peril  insured  against.  This  is  an  insurance  upon  an  article 
from  England  to  Naples,  warranted  free  from  particular  average.  The  plain- 
tiff, tlierelbre,  cannot  recover,  unless  the  article  be  totally  lost  by  a  peril  within 
the  policy,  and  such  peril  must,  as  I  think,  act  directly  and  not  collaterally 
upon  die  thing  insured.  I  much  doubt  whether,  if  a  verdict  had  been  found 
for  the  plaintiflf,  judgment  might  not  have  been  arrested.  With  respect  to  the 
case  of  Manning  v.  Newnham,  it  may  be  observed  that  Lord  Mansfield 
expressly  decides  it  upon  the  ground  of  the  voyage  being  lost  by  one  of  the 
perils  insured  against,  namely,  by  tempestuous  weadier.  The  words  of  Lord 
Kenyan,  in  the  case  of  AF  Andrews  v.  Vaughan,  in  which  he  lays  down,  that 
the  insured  may  recover  for  a  total  loss,  if  the  voyage  be  lost,  must  be  taken 
with  reference  to  the  case  before  him,  in  which  the  injury  arose  from  capture. 
The  case  of  Cocking  v.  Eraser  {b)  is  an  extremely  strong  authority  to  show 
that,  if  the  article  insured  (being  one  of  those  mentioned  in  the  memorandum) 


(a)  See  Dyson  v.  Rowcroft,  post,  3  B.  &  P.  474;  and  sec  Naylor  v.  Taylor,  9  B.  & 
C.  718,  ante,  p.  393. 

(i^  R.  R.  25  Geo.  3.     Park  Ins.  247,  poxl. 


232  TOTAL    LOSSES    AND    ABANDONMENT. 

remain  in  specie,  the  assured  cannot  recover,  though  it  be  rendered  totally  use- 
less, and  never  reach  the  port  of  destination.  But  that  case  did  not  involve  the 
question  on  which  this  case  turns,  namely,  whether  the  loss  was  occasioned  by 
a  risk  wiUiin  the  policy.  Here,  without  entering  into  the  question  how  far  the 
caro-o  was  totally  lost,  the  claim  made  by  the  assured  arises  from  the  ship  not 
proceeding  to  that  port  to  which  she  was  destined.  Had  she  proceeded  to 
Naples,  the  loss  insured  against  might  have  arisen.  If  we  were  to  decide  that 
the  sale  at  Port  Mahon  was  a  total  loss  within  the  policy,  it  would  afford  to 
owners  insuring  cargoes  of  the  description  specified  in  the  memorandum  the 
opportunity  of  creating  imaginary  dangers  whene\'er  the  cargo  was  not  likely 
r  ^117  1  ^°  reacl^  the  port  of  destination  in  a  sound  state,  and  by  giving  notice 
'  J  *of  abandonment  to  throw  a  loss  upon  the  underwriters,  to  which 

they  are  not  liable  by  the  terms  of  the  policy.  We  are  of  opinion  the  verdict 
was  right."  [a) 

A  decision,  upon  similar  principles,  was  made  by  Lord  Ellenhorough,  in 
the  following  case  of  Blanckenhagen  v.  London  Assurance  Company,  [b) 
The  insurance  was  on  goods  on  the  ship  TJWunn,  at  and  from  London  to 
Revel.  The  ship  sailed  from  the  Nore,  under  convoy  of  the  Forrester  sloop 
of  war,  for  the  Sound,  and  arrived  there  on  the  27th  October,  1807.  The 
ship  proceeded  from  thence  towards  Revel,  on  the  15th  of  November,  under 
convoy  of  the  Garnett  sloop  of  war.  On  the  17th  of  November,  whilst  the 
ship  was  proceeding  on  her  voyage  with  the  convoy,  it  became  known  to  the 
convoy  that  an  embargo  was  laid  on  all  British  ships  in  Russian  ports ;  and 
in  consequence  thereof,  the  ship,  under  the  orders  of  the  convoy,  returned  to 
Copenhagen  roads  on  the  18th  of  the  same  month.  The  ship  JViUiam,  together 
with  the  convoy,  afterwards  proceeded  to  lay  off  Gottenbitrgh,  a  Stvedish 
port,  for  six  days ;  and  the  ship  insured  might  have  gone  into  that  port,  if  the 
captain  had  so  thought  fit,  Sweden  being  then  at  war  with  Russia,  but  in  amity 
with  this  kingdom.  The  ship  sailed  from  off  Gottenburgh  the  30th  of  Novem- 
ber, 1807,  with  the  Garnett  and  fleet  for  England,  with  the  additional  convoy 
of  tiie  Spitfire  sloop  of  war.  The  ship  JTilliam  was  last  seen  on  the  3rd  of 
December,  1807,  distant  ten  leagues  from  the  Naze  of  Norivay,  Avhen  the  sea 
ran  high,  and  not  having  been  since  heard  of,  she  was  admitted  to  be  lost. 
Hostilities  between  this  country  and  ^?/ss/«  commenced  on  the  \'d\\\oi  Decem- 
ber, and  between  this  country  and  Denmark  in  the  preceding  September. 
r  *418  1  *Lord  Ellenborotigh  told  the  jury  that  this  was  a  contract  for 
^  -J  the  voyage  out,  and  that  although  a  ship  from  necessity  might  be 

allowed  to  take  a  circuitous  course,  yet  the  ultimate  point  of  destination  must 
ever  be  the  same.  That  such  a  necessity  might,  perhaps,  even  justify  a  return 
to  England,  if  it  could  be  proved  satisfactorily  that  it  was  the  intention  of  the 
parties  to  seize  the  first  favourable  opportunity  of  returning  to  Revel.  No  such 
evidence  appears  in  the  present  case.  Neither  does  it  appear  that  the  convoy 
compelled  the  return  to  England:  for,  although  the  first  part  of  the  case  states 
tliat  the  return  to  Copenhagen  roads  was  under  the  orders  of  convoy,  the  return 
to  England  is  not  averred  to  be  under  such  compulsion ',  I  must,  therefore, 
take  this  to  be  a  voluntary  abandonment  of  the  voyage.  At  all  events,  even  if 
there  had  been  an  intention  to  return  to  Revel,  war  intervened  before  such  an 


{a)  Sep,  however,  the  case  of  Barker  v.  Blakes,  9  East,  283 ;  and  see  the  cases  of  Lub- 
bock V.  Rowcroft,  5  Esq.  50.  Parkin  v.  Tutiiio,  11  East,  22.  P'orster  v.  Christie,  II 
East,  25,  where  the  Court  held,  that  on  the  authority  of  Hadkinson  v.  Robinson,  where  a 
loss  was  attributable  merely  to  the  fear  of  a  hostile  embargo  at  the  port  of  destination,  this 
was  not  a  loss  Ity  tlu;  arrest  or  detention  of  kings. 

{b)  8itt.  before  Mich.  1  Camp.  454. 


TOTAL    LOSSES    AND    ABANDONMENT.  233 

intention  could  be  executed,  and  that  would  put  an  end  to  the  contract.     The 
plaintiir  was  nonsuited. 

Anotlier  action.  Brown  v.  Vi^ne,  (a)  was  brought  in  the  Common  Pleas  on 
this  policy,  and  Sir  James  Mansfield,  then  Chief  Justice,  concurred  with  Lord 
Ellenboroiigh ;  and  his  judffinont  was  afterwards  confirmed  by  the  whole 
Court.  And  where  a  ship  \vas  insured  to  her  last  port  of  discharge,  in  the 
river  Plata,  and  the  master,  hearing  that  Buenos  Ayres,  where  he  meant  to 
discharge  his  cargo,  was  in  the  hands  of  the  enemy,  went  to  Monte  Video,  and 
began  to  discharge  the  cargo  there ;  this  was  hold  to  be  her  last  port  of  dis- 
charge, and  therefore  the  underwriters  were  not  liable  for  a  loss,  after  the  ves- 
sel had  been  moored  twenty-four  hojirs. 

And  in  a  case  of  Doyle  v.  Powell,  {b)  in  which  goods  and  freight  were 
insured  "at  and  from  Liverpool  to  Monte  Video  and  Buenos  Jlyres,  if  open, 
or  the  ship's  final  port  of  discharge  in  the  river  Plata,  with  liberty  to  wait  two 
months  at  Monte  Video,  if  needful,  at  a  premium  of  five  guineas  ^  ^^jg  -, 
per  *cent.  to  return  two  per  cent,  for  risk,  ending  at  Monte  Video  L 
on  arrival,"  the  ship  arrived  on  the  2nd  of  August  at  Monte  Jldeo,  which 
was  then  blockaded  bv  an  enemy's  fleet,  to  prevent  vessels  passing  to  Buenos 
Jlyres.  The  l)lockade  did  not  cease  till  the  4th  of  October.  The  vessel  after- 
wards sailed  for  Buenos  Ayres,  and  was  lost.  The  Court  held  that  the  risk 
was  at  an  end  when  the  vessel  had  stayed  more  than  two  months  at  Monte 
Jldeo,  and  as  the  loss  happened  subsequently  to  that  time,  the  underwriters 
were  discharged. 

Mr.  Justice  Park,  towards  the  conclusion  of  his  chapter  (c)  on  abandon- 
ment, says,  that  the  efTect  of  it  is  necessarily  apparent,  namely,  "that,  when 
the  assured  claimed  a  total  loss,  he  must  cede  or  abandon  whatever  is  saved  or 
whatever  may  be  recovered  to  the  underwriter,  and  who,  when  the  transfer  is 
made  to  him,  stands  in  the  place  of  the  assured,  and  thus,  by  the  transfer, 
becoming  entitled  to  all  the  benefit  and  advantage  which  the  assured  himself 
could  have  claimed  if  his  property  had  been  uninsured.  But  the  very  peculiar 
circumstances  which  in  many  cases  occurred  during  the  two  last  wars,  have 
led  to  a  variety  of  discussions  upon  this  subject.  Amongst  others,  the  late 
Emperor  (Paul)  of  Russia,  liaving,  in  the  month  of  November,  1800,  laid  an 
embargo  on  all  British  shipping  then  in  the  Russian  ports,  most  of  which, 
being  then  laden  for  their  homeward  voyage,  he  compelled  to  unload,  and  having 
again  taken  off'  the  embargo  in  May,  1801,  and  allowed  the  same  cargo  to  be 
reloaded,  and  sent  to  England,  a  considerable  question  arose  between  the  two 
sets  of  underwriters  on  ships  and  freight.  The  owners  had  often  insured  the 
ships  with  one  set  of  underwriters,  the  freight  with  another;  and  m  February, 
1801,  when  the  news  of  this  embargo  reached  England,  losses  to  a  consider- 
able amount  were  paid,  the  assured  abandoning  the  ships  to  the  underwriters 
on  ships,  the  freight  to  the  underwriters  on  freight.  But  afterwards,  when  the 
embargo  was  taken  off",  when  the  sliips  arrived,  and  the  freights  were  earned 
and  paid  to  the  *owners,  the  question  was,  whether  the  abandon-  p  *4<i(i  "I 
ment  of  the  ship  conveyed  to  the  insurer  on  ship  the  freight  she  ^ 
had  earned,  or  whether  it  went  to  the  underwriter  on  freight,  to  whom  also  an 
abandonment  had  been  made." 

In  France,  no  difficulty  could  well  arise  upon  such  a  subject,  because  insu- 
rances on  ship  and  freight  are  not  known  as  distinct  subjects  of  insurance,  (rf) 
But  that  not  being  the  case  in  England,  and  the  question  being  of  considerable 


(«)   12  East,  283.     See  Naylor  v.  Taylor,  9  B.  &  C.  716;  ante,  p.  393. 
(i)  4  B.  &  Ad.  207.  (c)  Park  Ins.  385. 

(d)  2  Emcrigron,  221. 


234  TOTAL   LOSSES   AND    ABANDONMENT. 

difficulty,  and,  in  point  of  value,  of  great  magnitude,  it  has  been  the  subject  of 
much  discussion.  In  the  first  case  which  came  before  the  Court,  in  which 
there  had  been  separate  insurances  upon  the  sliip  and  freight,  and  an  abandon- 
ment to  the  respective  underwriters,  and  where  the  ship  afterwards  performed 
her  voyage  and  earned  freight,  the  real  question  as  to  the  effect  on  the  accruing 
freight  by  an  abandonment  to  the  underwriters  on  ship  was  not  the  subject  of 
discussion,  the  Court  looking  merely  to  the  express  undertaking  of  the  assured 
to  the  underwriters  on  freight  by  abandonment,  held  them  liable  for  the  amount, 
after  deducting  the  expenses  of  earning  it,  but  they  guardedly  abstained  from 
expressing  an  opinion  respecting  the  relative  rights  of  the  two  sets  of  under- 
writers. The  question,  however,  at  last  came  fully  before  the  Court  in  the 
case  of  Case  v.  Davidson,  (6)  to  which  we  shall  presently  refer,  and  in  which 
the  Court  held  that  an  abandonment  to  the  underwriters  on  sliip  transfers  to 
them,  as  an  incident,  the  freight  which  the  ship  may  subsequently  earn,  although 
a  separate  insurance  may  have  been  effected  on  the  freight  by  other  under- 
writers, and  abandoned  to  them  by  the  owners. 

The  first  in  order  was  the  case  of  Thompson  v.  Foiocroft,  (c)  in  an  action 
by  the  underwriter  on  freight  against  the  owner  of  the  ship.  His  declaration 
stated,  that  the  defendant  was  owner  of  three-fourths  of  the  ship  Thesus,  which 
had  been  chartered  by  him  to  one  Sanders,  to  proceed  to  JRiga  for  a  quantity 
r  *421  1  ^^  masts,  and  to  return  therewith  to  "^ Portsmouth,  for  which  cer- 
'-  -*  tain  freight  was  to  be  paid.     That  the  defendant  caused  the  freight 

to  be  insured,  and  that  the  plaintiff  subscribed  the  policy  for  I  50/.  That  the 
ship  arrived  at  Riga,  was  there  loaded,  and  had  nearly  completed  her  cargo, 
when,  in  November,  1800,  the  ship  was  arrested,  restrained,  and  detained  by 
the  Russian  government,  at  Riga,  and  the  cargo  was  unladen  and  kept  under 
the  authority  of  the  same  government:  and  that,  on  the  11th  February  1801, 
upon  intelligence  of  the  loss  arriving  in  London,  the  defendant  applied  to  the 
plaintiff,  and  the  other  underwriters  on  freight,  requiring  them  to  pay  a  total 
loss,  and  abandoning  to  them  their  interest  in  the  freight  insured.  The  decla- 
ration then  stated,  that,  in  consideration  of  the  premises,  and  that  such  payment 
of  the  loss  should  be  made  within  one  month,  defendant  promised,  on  such 
payment  being  made,  to  assign  all  right  of  recovery  and  compensation  of  and 
in  the  freight  to  one  W.  D.  and  the  plaintiff,  in  proper  form,  for  the  benefit  of 
the  underwriters.  That  payment  of  the  loss  was  duly  made  to  the  defendant : 
that  afterwards,  in  May  1801,  the  arrest,  &c.  of  the  said  ship  was  withdrawn 
by  the  Russian  government,  and  the  ship  and  cargo  liberated,  and  tlie  cargo 
put  on  board  the  ship,  and  the  said  ship  proceeded  to  Portsmouth,  and  deliv- 
ered her  cargo  to  ^S".  Sanders;  and  the  defendant  thereupon  received  the  freight 
of  the  same  to  the  amount  of  1,857/.,  and  that  the  plaintiff's  interest  therein 
was  150/.,  yet  that  the  defendant  had  not  made  any  assignment  for  the  benefit 
of  the  underwriters  on  freight.  The  cause  was  tried  before  Lord  EUenhorough, 
when  a  verdict  was  found  for  the  plaintiff,  subject  to  the  opinion  of  the  Court 
on  a  case,  which  stated  the  preceding  facts,  and  also  that  the  ship  had  been 
insured ;  and  that,  on  hearing  of  what  had  passed  in  Russia,  the  respective 
underwriters  paid  their  total  losses,  and  the  following  indorsements  were 
made  on  the  policies.  That  on  tlie  ship  was  in  these  words  :  "Agreed  to  set- 
tle a  total  loss  of  100/.  per  cent.,  the  ship  being  detained  and  seized  at  Riga, 
and  the  owners  to  account  to  the  underwriters  for  the  ship,  if  restored  to  or 
r  *422  ~\  ^^^^'^'*^d  '^y  diem,  or  to  make  at  the  expense  *of  the  underwriters, 
-^  a  proper  assignment  of  their  interest,  in  proportion  to  the  sums 
insured.     London,  \d\h  January,  1801."     And  on  that  on  the  freight,  "the 


(i)  5  M.  &  S.  79.  (c)  4  East,  34. 


TOTAL    LOSSES    AND    ABANDONMENT.  235 

interest  in  the  freight  insured  l)y  this  j)olicy  being  abandoned  lo  tlu;  underwri- 
ters, as  far  as  their  subscriptions  on  the  same,  and  payment  of  the  loss  being 
agreed  to  be  made  in  one  month,  as  customary,  it  is  agreed,  on  such  payment 
being  made,  to  assign  all  right  of  recovery,  compensation,  &c.  to  11.  'J\,  W. 
D.,  and  T.  R.,  for  the  benefit  of,"  &.c.  And  the  defendant  signed  the  follow- 
ing agreement :  "In  consideration  of  the  underwriters  having  accepted  an  aban- 
dolnnent  of  the  ship  Thc.Ufn,  &c.,  and  liaving  agreed  to  pay  a  total  loss  thereon, 
I  do  hereby  promise,  on  payment  of  the  same,  to  make  over  to  them  or  their 
assigns,  at'thcir  expense,  an  assignment,  in  a  reasonable  and  proper  form,  of 
their  interest  and  proportion  of  the  same.  Thomas  Rowcroft.'''  No  assign- 
ment has  been  executed  either  of  ship  or  freight.  The  defendant  has  received 
the  freight,  and  has  been  called  upon  by  the  plaintili'  to  make  an  assignment 
for  his  benefit  according  to  the  above-mentioned  indorsement  on  the  j)olicy  on 
freiglit :  but  the  underwriters  on  the  ship  insist  that  they  are  entitled  to  the 
freight,  and  have  given  the  defendant  notice  of  such  claim ;  and  he  therefore 
does  not  think  himself  justified  in  paying  the  plaintiflf  without  the  sanction  of 
the  Court. 

It  is  observable  from  this  statement  that  the  intention  of  the  parties  here  was 
to  procure  a  decision  of  the  Court  upon  the  general  question,  whether  the 
underwriters  on  ship  or  freight  were  entitled  to  what  may  be  deemed  the  sal- 
vage on  the  freight:  and  it  was  so  considered  at  the  Bar  on  the  first  argument, 
treating  the  defendant  as  a  mere  stakeholder,  and  the  question  as  being  in  truth 
between  the  underwriters  on  the  ship  and  those  on  the  freight.  But  at  the 
recommendation  of  the  Court,  the  second  argument  was  narrowed  to  the  con- 
sideration of  tlic  question  upon  the  specific  agreement  between  the  plaintiff  and 
the  defendant :  and  on  this  ground  alone  the  case  was  ultimately  decided.  The 
defendant's  counsel  were  of  course  to  contend  as  to  the  general  question,  that 
*the  underwriters  on  ship  were  entitled  to  the  earnings  of  the  ship  :  p  ^^^^  -, 
but  '-  -^ 

Lord  EUenboroitgh  said", — "If  the  riglits  of  the  respective  sets  of  under- 
writers on  the  ships  and  on  the  freight  clashed  in  this  case,  and  if  it  had  been 
a  question  of  priority  between  the  two,  who  were  litigating  for  payment  out  of 
the  same  fund,  I  should  have  gone  with  the  defendant's  counsel  in  a  great  part 
of  their  argument;  but  here  the  litigation  is  by  one  of  the  sets  of  the  under- 
writers witli  the  assured,  who  has  made  a  specific  contract  with  each  of  them, 
by  which  he  must  be  bound.  And  therefore,  in  my  present  view  of  the  sub- 
ject, the  right  of  property  in  the  subject-matter  may  be  in  the  underwriters  on 
the  ship,  and  yet  the  defendant  may  be  liable  to  the  underwriter  on  the  freight 
in  this  action.  The  plaintiff  contracted  with  the  defendant  to  insure  his  freight ; 
an  event  happened  which  entitled  him  to  abandon  it  to  the  plaintiff;  the  plain- 
tiff accepted  the  abandonment,  and  has  paid  the  defendant  as  for  a  total  loss  of 
the  freight.  The  defendant  has  since  received  the  freight;  and  yet  he  refuses 
to  pay  it  over  to  the  plaintiff  in  pursuance  of  his  undertaking.  To  be  sure  he 
is  liable."     Judgment  for  the  plaintiff. 

In  tiie  very  same  Term,  a  special  case,  Leafham,  Executor  v.  Terry,  {a) 
the  facts  of  which  were  substantially  the  same,  received  a  similar  decision. 
The  declaration  in  that  case  was  merely  for  money  had  and  received  to  the  use 
of  the  plaintiff's  testator,  who  had  been  an  underwriter  on  freight  of  the  ship 
Manchester.  The  Court  took  time  to  consider  of  the  point,  and  then  Lord 
Alvanleij  said, — "we  have  inquired  into  the  circumstances  of  the  case  lately 
decided  '{Thompson  v.  Koivcroft)  in  the  King's  Bench,  upon  the  same  subject, 
and  find  they  do  not  materially  difici   from  the  present.      Here  the  assured,  in 


(a)  Trin.  43  Geo.  3,  3  B.  &  P.  479. 


236  TOTAL    LOSSES   AXD    ABANDONMENT. 

consideration  of  being  paid  for  a  total  loss  upon  the  ship,  agreed  to  assign  over 
r  *494  1  ^^^  their  right  and  interest  in  the  ship  :  after  which  they  agreed  with 
L  J  *the  underwriters  on  freight,  in  consideration  of  being  paid  a  total 

loss  of  the  freight,  to  assign  over  to  them,  'all  their  right  and  title  to  all  future 
benefit  that  might  occur  thereafter,  except  as  insurers  therein.'  The  ship  hav- 
ing arrived  and  earned  freight,  the  defendants,  who  are  the  assured,  received 
the  whole,  as  if  they  had  never  abandoned :  and  the  question  now  is,  whether, 
in  an  action  for  money  had  and  received  to  their  use,  the  underwriters  or 
freighters  are  not  entitled  to  demand  what  the  assured  have  received.^  The 
Court  of  King's  Bench,  in  deciding  the  case  before  them,  w^ere  of  opinion, 
that  the  assured  had  bound  themselves  to  account  to  the  underwriters  on  freight 
for  all  the  freight  they  might  receive;  but  in  giving  judgment  they  expressly 
declared,  that  they  did  not  intend  to  decide  the  question  between  the  under- 
writers on  the  ship,  and  the  underwriters  on  the  freight.  AVe  shall  take  the 
same  course ;  and  though  the  case  has  been  argued  as  if  it  were  a  question 
between  the  two  sets  of  underwriters,  we  desire  not  to  be  understood  as  giving 
an  opinion  upon  such  a  case.  We  only  determine  that  the  defendants  have 
made  themselves  responsible  to  the  plaintiffs,  in  this  form  of  action,  for  the 
freight  which  they  have  received."     Judgment  for  the  plaintiffs. 

In  the  next  case  which  came  before  the  Court,  the  general  question  could 
hardly  fail  to  be  discussed,  especially  as  the  Court  itself,  at  the  close  of  the 
first  argument,  desired  that  the  second  might  be  confined  to  the  consideration 
of  the  effect  of  an  abandonment  of  a  ship  upon  the  right  to  the  accruing  freight. 
It  was  the  case  of  MCarthy  and  others  v.  Abel,  {a) 

It  was  an  action  brought  on  a  policy  of  insurance  on  freight  of  the  ship 
Thomas^  upon  a  voyage  at  and  from  Riga  to  Chatham,  &c.  At  the  trial 
before  Lord  Ellenborough,  a  verdict  was  found  for  the  plaintiffs  for  200/.  sub- 
ject to  the  opinion  of  the  Court  on  the  following  case.  That  the  plaintiffs, 
r  *425  1  ^^^"to  owners  of  the  ship,  chartered  her  to  Thorntons  *and  Smal- 
'-  -'  ley,  for  the  voyage  insured,  for  which  freight  was  to  be  paid  in 

certain  proportions  (restraints  of  princes  and  rulers  during  the  voyage  excepted.) 
On  the  ship's  arrival  at  Riga,  she  was  supplied  with  a  cargo,  and  nearly  the 
whole  thereof  had  been  taken  on  board,  when  an  embargo  (Aoucwjier,  1800) 
was  laid  on  all  the  British  shipping  in  the  port  of  Riga.  The  case  then  states 
the  relanding  of  the  cargo,  the  abandonment  to  the  underwriters  on  freight  on 
the  11th  January,  1801,  of  their  interest  in  the  freight,  and  demanded  a  total 
loss.  And  on  the  same  day  they  abandoned  the  ship  to  the  underwriters  on 
ship.  The  case  further  states  the  restoration  of  the  ship  by  Russia,  the  reload- 
ing of  the  ship,  and  tlie  earning  of  the  freight,  which  was  paid  by  the  freighters 
to  the  agent  for  the  underwriters  on  ship,  under  an  indemnity  from  them  against 
any  claims  which  might  be  made  thereto,  either  by  the  plaintiffs  or  by  the 
underwriters  on  freight.  The  plaintiffs  had  duly  assigned  over  by  indenture, 
in  February,  1801,  the  ship  Thomas,  and  all  the  interest,  property,  claim,  or 
demand  of  the  plaintiffs,  in,  to,  or  out  of  the  said  ship  and  her  appurtenances 
to  two  persons,  in  trust  for  all  the  underwriters  on  the  ship. 

After  two  arguments,  and  time  taken  to  deliberate.  Lord  Ellenborough,  Chief 
Justice,  delivered  the  judgment  of  the  Court. — "The  novelty  of  the  question  in 
this  case,  the  value  of  the  property,  and  the  extent  to  which  some  of  the  princi- 
ples laid  down  in  the  argument  seemed  to  lead,  made  us  desirous  of  every  infor- 
mation on  the  different  points  which  might  arise  between  the  several  parties 
interested,  before  we  came  to  our  decision ;  and,  therefore,  we  wished  for  a 
second  argument  on  the  effect  of  an  abandonment  of  the  ship  on  the  accruing 

(a)  5  East,  388. 


TOTAL   LOSSES    AND    ABANDONMENT.  237 

freight  If  the  question  which  arises  upon  this  case  be  stripped  of  extraneous 
circumstances,  it  appears  to  resolve  itself  into  this  single  point,  whether  the 
freight  have  been  in  this  case  lost  or  not?  If  the  fact  be  merely  looked  at,  freight 
in  the  events  which  have  happened  has  not  been  lost,  but  has  been  fully  and 
entirely  earned  and  received  by,  or  on  behalf  of  the  plaintiffs,  the  assured ;  and 
if  so,  no  loss  can  be  -properly  demaiidal^le  from  the  underwriters  ^  ^.^.^g  -, 
on  freight,  who  merely  insure  against  the  loss  of  that  particular  sub-  L  J 

ject  by  the  ast'ured.  But  if  it  have,  or  can  be,  in  any  other  manner  or  sense, 
lost  to  the  owners  of  the  ship,  it  has  become  so  lost  to  them,  not  by  means  of 
the  perils  insured  against,  but  by  means  of  an  abandonment  of  the  ship,  which 
abandonment  was  the  act  of  the  assured  themselves,  and  with  which,  therefore, 
and  the  consequences  thereof,  the  underwriters  on  freight  have  no  concern.  It 
appears  to  us.  therefore,  thai  qnncunque  via  data,  that  is,  whether  there  has 
been  no  loss  at  all  on  freight,  or  being  such,  it  has  been  a  loss  only  occasioned 
by  the  act  of  the  assured  themselves,  that  they  are  not  entitled  to  recover. 
There  must,  therefore,  be  a  judgment  of  nonsuit. 

The  next  case  was  Sharp  v.  Gladstone,  {a)  similar  in  its  circumstances  to 
the  preceding,  and  where  it  was  held  that  freight  received  by  the  owner  ^yas 
payable  to  the  underwriters  on  freight,  subject  to  a  deduction  of  a  proportion 
of  the  charges  of  the  voyage.  Lord  EUenhorough  said,  ''As  to  the  general 
question,  whether  an  abandonment  could  be  made  to  the  underwriters  on  freight, 
after  an  abandomnent  to  the  underwriters  on  ship,  I  beg  to  be  understood  as 
giving  no  opinion :  and  with  respect  to  that,  this  not  being  the  case  of  a  char- 
tered but  of  a  sinking  or  general  ship,  a  distinction  may  arise.  "(6) 

The  question,  however,  between  the  two  sets  of  underwriters  came  at  length 
expressly  before  the  Court,  in  the  case  of  Case  v.  Davidson,  {c)  A  ship  was 
insured  as  a  general  ship  on  a  voyage  from  Rio  Janeiro  to  Liverpool,  and  the 
freight  of  the  voyage  was  insured  by  other  policies.  The  ship  being  captured, 
the  owners  abandoned  to  the  respective  underwriters.  She  was  afterwards 
recaptured,  arrived  at  -Liverpool,  and  earned  freight.  It  was  ^  .,^27  "i 
agreed  between  the  owners  and  the  underwriters  on  the  ship  (but  L  J 

not  by  the  underwriters  on  freight,)  that  the  defendant  should  sell  the  ship  and 
receive  the  proceeds,  and  also  the  freight  of  the  cargo,  for  the  benefit  of  those 
who  should  be  legally  entitled  to  it.  The  respective  underwriters  on  ship  and 
freight,  had  severally  settled  for  a  total  loss,  and  they  now  severally  claimed  the 
freight  which  had  been  earned.  It  was  contended,  on  the  part  of  the  under- 
writers on  the  ship  that  the  abandonment  of  the  ship  conveyed  to  them  the 
ship's  future  earnings ;  and  that  their  title  to  these  earnings  was  not  affected  by 
an  abandonment  to  the  underwriters  on  freight ;  and  the  cases  of  Chimney  v. 
Blacklmrne,  {a)  Splidt  v.  Boivles,  {b)  and  Morrison  v.  Parsons,  (c)  were 
referred  to  as  authorities,  to  show  that,  by  an  assignment  of  the  ship,  the  freight 
passes  to  the  assignee,  and  payment  to  him  will  be  good.  It  was  argued  on 
behalf  of  the  underwriters  on  freight,  that  as  the  freight  was  a  distinct  subject 
of  insurance,  the  law  would  mould  these  contracts  when  they  occurred  so  as  to 
keep  the  rights  of  the  respective  parties  distinct,  whereas  if  the  underwriters  on 
the  ship  were  to  be  entitled  to  her  earnings  it  would  be  to  confound  the  two 
species  of  abandonment",  and  make  the  insurance  on  freight  of  no  avail.     The 


(a)  7  East,  24. 

(A)  See  Barclay  v.  Stirling,  5  M.  &  S.  6,  where  a  ship  went  on  shore,  the  insured  on 
freight  abandoned  and  recovered  for  a  total  loss :  freight  being  afterwards  earned,  the  Court 
held  that  the  underwriters  were  entitled  to  it  after  a  deduction  of  the  expense  of  procuring  it. 

(c)  5  M.  &  S.  79.  («)    1  H.  Black.  117,  in  notis. 

(Jb)   10  East,  279.  (c)  2  Taunt.  407. 


238  TOTAL    LOSSES    AND    ABANDONMENT. 

Court,  with  the  exception  of  Mr.  J.  /iaj/Zc^  delivered  their  jud<^ment  in  favour 
of  the  underwriters  on  the  ship. 

Lord  Ellcnborou^h. — "Although  this  question  now  comes  distinctly  in  judg- 
ment before  us  for  the  first  time,  yet  it  has,  I  own,  been  long  considered,  in  my 
mind,  as  settled  that  freight  follows,  as  an  incident,  the  property  in  the  ship ; 
and  therefore,  as  between  the  respective  underwriters  on  ship  and  freight,  an 
abandonment  of  the  ship  carries  the  freight  along  w^ith  it.  The  underwriter, 
indeed,  does  not  become  privy,  by  virtue  of  such  abandonment,  to  any  existing 
charter-party,  nor  perhaps  to  any  contract  of  affreightment,  before  made  with 
r  *49R  ~1  ^'^^  owner;  but,  I  think,  that  by  the  abandonment,  he  *acquires 
L  J  possession  of  the  thing,  from  the  use  of  which  freight  is  to  be 

earned.  It  is  true  that  the  ship  owner  may  have  entered  into  contracts  for  the 
insurance  of  the  freight,  and  that  by  abandonment  of  the  ship,  the  underwriters 
on  freight  will  be  deprived  of  some  rights  to  which,  perhaps,  they  would  be 
otherwise  entided ;  but  this  will  necessarily  happen,  if  the  underwriter  on  ship 
is  entided  to  look,  without  reference  to  the  contracts  of  other  persons,  to  his 
own  contract,  and  to  those  consequences  which  result  to  him  from  abandon- 
ment. An  abandonment  to  the  underwriter  on  ship,  transfers  to  him  not  merely 
the  hull,  but  the  use  of  the  ship,  and  the  advantages  resulting  from  the  com- 
pletion of  the  voyage.  The  underwriter  on  freight  will  certainly  by  this  doc- 
trine lose  the  specific  thing  abandoned  to  him,  except  where  the  assured  is 
entided  to  die  freight;  but  abandonment  of  the  freight  cannot  break  in  upon  the 
rights  of  those  who  are  entided  to  the  ship.  And  I  own  it  seems  to  me,  that 
it  cannot  make  a  difference,  whether  the  underwriter  on  ship  has  or  has  not  a 
notice  of  the  insurance  on  freight;  for  I  rest  on  this  simple  ground,  that  the 
abandonee  of  the  ship  has  all  the  rights  of  the  shipowner  cast  upon  him  by 
operation  of  that  emphatic  word  in  the  law-merchant,  abandonment,  and  being 
so  entided,  has  a  right,  if  he  uses  the  ship  for  completing  her  voyage,  to  her 
earnings,  as  against  all  the  world." 

Abbott,  J. — "I  am  of  opinion  that  the  plaintiff  is  entided  to  recover.  The 
question  comes  now  for  the  first  time  to  be  decided,  but  it  is  not  new  to  the 
Court;  an  opinion  has  been  expressed  upon  it  in  several  cases.  Nor  is  it  bv 
any  means  a  new  point  to  the  minds  of  professional  men,  who  have  been  at 
all  conversant  with  the  law-merchant.  Now  this  is  a  principle  clearly  estab- 
lished, that  if  the  ship  be  sold,  the  vendee  is  entitled  to  the  freight  as  an  inci- 
dent to  the  ship.  And,  on  that  principle,  I  found  my  judgment  in  this  case, 
being  of  opinion  that  an  abandonment  is  equivalent  to  a  sale  of  the  ship.  It 
was  argued  by  Mr.  Littledale,  that  since  a  practice  has  prevailed  in  this  country 
of  insuring  ship  and  freight  separately,  the  underwriters  on  ship  must  contem- 
r  *42Q  1  P^'^^^  *that  inasmuch  as  freight  may  be  the  subject  of  a  separate  in- 
•-  -^  surance,  it  may  also  be  separately  abandoned.     But  this  argument 

is  l)ui!t  upon  an  assumption  that  an  abandonment  of  freight  convey  to  the 
abandonee  a  right  to  the  freight,  in  preference  to  the  right  of  the  abandonee,  of 
the  ship,  which  is  assuming  the  whole  question.  As  well  might  it  be  argued 
tliat  as  the  underwriter  on  freight  is  aware  that  the  ship  may  be  separately- 
insured,  lie  must  l)e,  therefore,  taken  to  know  that  an  abandonment  of  the  ship 
will  convey  all  the  incidents  belonging  to  it  to  the  abandonee.  The  practice, 
therefore,  of  insuring  ship  and  freight  separately,  seems  to  me  to  afford  no 
argument  whatever  either  way  to  show  what  the  law  is  or  ought  to  be.  If  it  had 
been  the  practice  that  upon  separate  insurances,  the  abandonee  of  freight  should 
take  the  freight  notwithstanding  an  abandonment  of  the  ship,  such  a  practice 
might  have  afforded  a  construction,  but  we  do  not  find  that  there  has  been  any 
such  practice." 

Hotroijd,  J. — "It  appears  to  me  that  when  the  shipowner  abandons  his  ship 
to  the  underwriter,  the  latter  stands  in  all  respects  as  to  future  benefit  in  place 


TOTAL   LOSSES    AND    ABANDONMENT.  239 

of  the  owner.  It  follows,  as  a  consequence  of  abandoning  the  ship,  that  the 
owner  divests  himself  of  his  right  to  freight,  which  is  incident  to  the  ship,  and 
the  same  becomes  vested  in  the  abandonee,  to  whom  it  is  competent  to  possess 
himself  of  the  ship,  and  if  she  be  unfreighted.  to  endeavour  to  obtain  for  her 
a  freight.  And  if  the  ship  be  freighted,  yet,  as  it  seems  to  me,  the  under- 
writer is  not  bound  to  complete  the  voyage,  because  the  rights  of  the  owners 
of  the  goods  laden  on  board,  are  personal,  lying  in  contract  with  the  shipowner 
and  not  running  with  the  ship,  and  being  in  respect  of  a  personal  chattel,  an 
action  lies  not  against  the  underwriter,  but  the  shipowner  alone."  (o) 

In  Green  v.  The  Royal  Exchange  Company,  {b)  which  *was  p    ^^oa     -i 
an  action  on  a  policy  on  freight,  and  whore  the  ship,  after  having  L  J 

received  her  cargo  was,  by  sea-damage,  so  disabled  as  to  make  it  impossible 
for  her  to  bring  it  home,  the  question  was  whether  an  abandonment  was  neces- 
sary }  The  Court  of  Common  Pleas  held  it  was  not,  Lord*  Chief  .Tustice  Gihbs 
observing,  "he  could  not  understand  what  there  was  to  be  abandoned."  (a) 

1.  In  many  of  the  maritime  countries  on  the  continent  of  Europe,  the  time, 
within  which  the  abandonment  must  be  made,  is  fixed  by  positive  regulations. 
Thus  in  France,  {b)  it  is  ordained,  that  all  cessions  or  abandonments,  as  well 
as  demands  in  virtue  of  the  policy,  shall  be  made  as  follows : — In  six  weeks, 
for  losses  happening  on  the  coasts  of  the  country  where  the  insurance  was 
made ;  in  three  months,  in  other  provinces  of  our  kingdom ;  in  four  months, 
on  the  coast  of  Holland,  Flanders,  and  England;  in  a  year,  Spain,  Italy, 
Portugal,  Barbary,  Muscovy,  None  ay ;  and  in  two  years,  for  the  coast  of 
America,  the  Brazils,  Guinea,  and  other  distant  countries.  When  these 
terms  are  elapsed,  the  demands  of  the  assured  shall  not  afterwards  be  admitted. 
In  cases  of  detention,  the  same  ordinance  provides,  that  the  abandonment  shall 
not  be  made  before  six  months,  if  it  happen  in  Europe  or  Barbary.  If  in  a 
more  distant  country  in  a  year;  both  to  commence  from  the  day  of  the  notify- 
inor  this  detention  to  the  insurers.  A  similar  regulation  to  that  last-mentioned 
is  to  be  found  in  the  ordinances  of  Bilboa.  (c) 

In  the  law  of  England  till  lately  we  had  no  limitation  of  time,  with  respect 
to  abandonment.  But  from  what  has  been  said  in  the  preceding  part  of  this 
section,  it  would  appear,  that  the  insured  has  a  right  to  call  upon  the  under- 
writer for  a  total  loss,  and  of  course  to  abandon,  as  soon  as  he  hears  of  such  a 
calamity  having  happened,  his  claim  to  an  indemnity  not  being  at  all  suspended 
by  the  chance  of  a  future  recovery  of  part  of  the  property  lost :  because,  by 
the  abandonment,  *that  chance  devolves  upon  the  underwriter,  by  p  ^  ,„,  -, 
which  means  the  intention  of  the  contracting  parties  is  fully  an-  L  -' 

swered,  and  complete  justice  is  done,  (a) 

•  Thus  in  the  case  of  Mlwood  v.  Hcnckell,  (b)  an  action  on  a  policy  of  assu- 
rance on  linen  on  board  the  Amphitrite,  at  and  from  London  to  Jamaica. 


(n)  A  learned  foreign  writer  in  commenting  on  the  15th  article,  tit.  Insurance,  which 
prohibits  the  insurance  on  freight,  is  of  opinion  that  fi-eight  is  an  incident  to  the  ship,  and 
must  from  its  nature  follow  it.     Valin,  liv.  3,  tit.  6. 

(6)  6  Taunt.  68. 

(a)  See  also  Idle  v.  Royal  Exch.  Comp.  8  Taunt.  755.    Mount  v.  Harrison,  4  Bing.  388. 

Ip)  Ord.  of  Lou.  XIV.,  tit.  Insurance,  art.  48. 

(c)  Art.  49;  2  Mag.  416. 

(a)  See  ante,  p.  371  ;  and  see  ante,  p.  364,  where  Lord  Abinger,  in  Koux  v.  Salvador, 
says,  "But  if  he  elects  to  do  so,  as  the  insured,  or  a  portion  of  it  still  exists,  and  is  vested 
in  hira,  the  very  principle  of  the  indemnity  requires  that  he  should  make  a  cession  of  all 
his  right  to  the  recovery  of  it,  and  that  too  within  a  reasonable  time  after  he  receives  intel- 
ligence of  the  accident. 

(i)  Guild,  sit.  in  B.  R.  after  Mich.  1795.     Park  Ins.  399. 
Vol.  VII.— R 


240  TOTAL    LOSSES    AND    ABANDONMENT. 

The  Jlmphitrile  was  taken  by  a  French  privateer  within  a  few  leagues  of 
Jamaica.  Part  of  the  property  insured'  was  plundered  and  taken  out  of  the 
ship.  The  captain,  boatswain,  and  all  but  seven  men,  were  taken  out  of  herj 
a  fortnight  after  she  was  captured,  as  the  captors  were  making  their  way  to 
America,  the  ship,  with  the  remainder  of  her  cargo,  was  retaken  by  an  Eng- 
lish frigate,  and  taken  under  a  prize-master  to  Jlnfiguu.  The  ship  and  cargo 
were  both  sold  under  a  decree  of  the  Vice  Admiralty  Court  o{  Antigua,  by  a 
prize-agent,  who  received  the  proceeds,  and  was  to  pay  them  over  to  the  con- 
cerned, upon  payment  of  one-eighth  salvage  pursuant  to  the  last  Prize  Act. 

The  capture  and  recapture  were  entered  at  Lloyd's  on  the  15tli  oi'  Fcbri/ary, 
1795 ;  but  it  was  not  known  where  the  ship  was  carried  till  the  30th  of  March, 
when  a  letter  was  received  at  Lloyd's  addressed  to  the  owners  and  freighters 
and  underwriters  on  ship  Amphitrite  and  cargo,  from  the  Judge  of  the  Vice 
Admiralty  Court  of  Antigua,  informing  them  of  the  arrival  and  sale  of  the 
ship  and  cargo,  under  a  decree  of  the  Court,  and  desiring  to  have  some  agent 
appointed  to  remit  the  proceeds  to  England.  Powers  of  attorney  were  sent 
out  in  April  by  the  assured  for  this  purpose ;  and  the  proceeds  were  desired  to 
be  remitted  to  the  banking-house  of  Smith,  Payne  &L  Smith,  one  of  which 
gentlemen  was  agent  to  the  assured.     The  defendant  was  acquainted  in  April 

r  *432  1  ^^  ^'^^  ^'^^^  *'^"^  "°  abandonment  was  proved  to  have  been  made 
L  J  till  August,  near  four  months  after  Mr.  Payne,  who  was  the  plain- 

tiff's agent,  had  sent  out  the  power  of  attorney.  On  the  part  of  the  plaintiff, 
it  was  contended  that,  admitting  there  was  no  abandonment,  in  this  case  the 
property  having  been  absolutely  sold  and  converted  into  money,  before  the  par- 
ties knew  where  the  ship  was  taken  to,  the  loss  was  absolutely  total  in  its 
nature ;  and,  therefore,  there  was  no  occasion  for  an  abandonment. 

Lord  Kenyon,  though  he  did  not  give  any  decided  opinion  upon  this  point, 
inclined  to  think,  "that  an  abandonment  was  necessary,  and  that  the  case  was 
the  same  as  if  the  property  had  remained  in  specie  at  Antigua,  and  had  not 
been  sold.  That  the  assured  is  not  bound  to  abandon  in  any  case ;  and  might, 
in  case  the  sales  had  been  very  advantageous,  have  taken  the  benefit  of  them 
in  the  same  manner  as  they  might  have  retained  this  property,  if  it  had  re- 
mained in  specie.  But  the  assured  must  make  his  election  speedily,  whether 
he  will  abandon  or  not,  and  put  the  underwriter  into  a  situation  to  do  all  that 
is  necessary  for  the  preservation  of  property,  whether  sold  or  unsold.  He 
cannot  lie  by  and  treat  the  loss  as  an  average  loss,  and  take  measures  for  the 
recovery  of  it  without  communicating  that  fact  to  the  underwriters,  and  letting 
them  know  that  the  property  is  abandoned  to  them."  (a) 

Verdict  for  plaintiff",  subject  to  an  account  as  for  average  loss. 

The  making  the  election  to  abandon  speedily,  or  in  the  first  instance,  means 
the  earliest  opportunity  after  they  liave  examined  into  the  state  of  the  cargo ', 
but  they  arc  not  to  lie  by  in  order  to  govern  their  determination  by  the  rise  or 
r  *433  1  ^^^^  °^  *^^  market,  [h]  Nor  can  the  assured,  when  they  have  not 
-•  abandoned  in  the  first  instance,  afterwards  do  so,  when  they  find 
in  tlie  result  that  the  salvage  and  expenses  exceed  the  value  of  the  ship,  (c) 

But  if  the  insured,  hearing  that  his  ship  is  much  disabled  and  has  put  into 
port  to  repair,  express  his  desire  to  the  underwriters  to  abandon,  and  be  dis- 


(a)  See  also  Anderson  v.  The  Royal  Exchange  Assur.  Corap.  7  East,  38,  and  Barker 
V.  Blakcs,  9  East,  283.       See  also  Parmetor  v.  Todhuiiter,  1  Camp.  591.      In  the  case  of 
Hodgson  and  another  v.  Blackiston,  sitt.  after  Hil.  Term,  38  Geo.  3,  in  the  King's  Bench, 
it  wa.s  held,  that  a  notice  of  abandonment  was  necessary,  though  the  ship  and  cargo  had 
been  sold  and  converted  into  money  when  the  notice  of  the  loss  was  received. 

(/v)   (icrnon  V.  The  Royal  Exch.  Assur.  2  Marsh.  88. 

(c)  Martin  v.  Crokat,  14  East,  465. 


OF    AVERAGE    LOSSES.  241 

suadcd  from  it  hy  ihcm,  and  they  order  the  repairs  to  be  made,  tliey  are  liable 
to  the  owner  lor  all  the  sub.soquent  damage  occasioned  by  that  refusal,  though 
it  should  amount  to  the  whole  sum  insured.  Because  the  reason  why  notice 
of  abandonment  is  deemed  necessary,  is  to  prevent  surprise  or  fraud  upon  the 
underwriter;  but  in  the  case  put,  diey  have,  by  their  own  act,  superseded  the 
necessity  of  notice,  (c) 

And  where  the  assured  were  guilty  of  a  laches  of  five  days  in  offering  to 
abandon  after  the  time,  when  by  the  usual  course  of  the  post  they  must  have 
received  intelligence  of  the  loss,  the  notice  was  held  to  be  too  late,  [cl) 

And  so  an  underwriter  is  bound  to  say  within  a  reasonable  time  after  notice 
of  abandonment,  whether  he  will  accept  it  or  not.  (e) 

An  abandonment  may  be  by  parol,  but  it  should  be  certain;  and  therefore  a 
statement  of  the  facts,  a  request  to  settle  for  a  total  loss,  and  to  direct  the  dis- 
posal of  the  ship,  have  been  held  insufiicient.  The  word  "abandon"  ought 
to  be  made  use  of.  [f)  And  where  a  letter,  addressed  to  the  assured,  stating 
that  the  ship  had  been  forced  on  shore  and  a  quantity  of  sugars  damaged,  was 
shewn  by  the  broker  to  the  underwriters,  and  they  in  answer  directed  that 
"the  assured  would  *do  the  best  they  could  with  the  injured  pro-  p  $404  -1 
pcrty,"  this  letter  was  held  not  to  amount  to  a  notice  of  abandon-  •-  -I 

ment,  but  merely  to  impart  a  wish  that  the  assured  would  make  the  average 
loss  as  light  as  possible,  [g) 

OF    AVERAGE    LOSSES. 

We  come  now  to  the  second  division,  which  we  mentioned  at  the  commence- 
ment of  this  section,  of  "losses  and  misfortunes,"  which  are  the  words  ex- 
pressed in  the  policy,  and  have  been  taken,  with  the  concluding  sentence,  for 
the  subject  of  the  present  section.  We  have  already  seen  that  in  many  instances 
the  law,  as  well  as  the  terms  of  the  policy,  (which  it  in  fact  only  interprets) 
justifies  and  enjoins  the  assured  to  act,  in  the  case  of  an  accident,  in  the  best 
manner  that  they  are  able,  in  regard  to  the  thing  insured,  for  the  benefit  of  all 
concerned.  And  we  have,  in  many  of  the  preceding  cases  on  the  subject  of 
total  losses  and  abandonment,  seen  in  the  cases  either  where,  as  has  been  laid 
down,  an  abandonment  is  necessary  to  render  a  constructive  loss  a  total  one, 
by  which  the  assured  can  recover  from  the  underwriters  the  whole  sum  insured, 
and  in  the  other  cases  where,  as  we  have  also  seen,  that  the  adventure  and 
thing  insured  is  so  absolutely  destroyed  in  whole  or  in  part,  so  as  to  render  the 
loss  total,  without  any  need  of  notice  of  abandonment,  it  is  in  both  of  these 
cases  proper  for  the  assured,  or  his  agents,  to  save  as  much  of  the  thing  insured 
as  they  are  able ;  and  in  the  case  of  a  sale  either  of  a  ship  which  is  not  con- 
sidered worth  repairing,  or  in  the  case  of  goods  which  are,  although  perhaps 
in  existence  in  specie  reduced  to  a  certain  degree,  yet  would  be  most  clearly 
and  entirely  annihilated  and  good  for  nothing,  if  attempted  to  be  sent  by  another 
ship  to  the  end  of  their  original  destination  :  it  is,  I  say,  the  duty  of  the  assured 
to  take  care  of  the  money  proceeding  from  such  sale  while  *invested  ^  ^  .„_  -, 
in  him,  for  the  benefit  of  all  concerned  in  the  adventure.     As  I-iord  L  J 

Minger,  in  the  judgment  of  Roux\.  Salvador,  (Ji)  observes  that,  in  all  these 
cases,  "not  only  the  thing  assured,  or  part  of  it,  is  supposed  to  exist  in  specie, 


(c)  Da  Costa  v.  Nevvnhara,  2  T.  R.  407. 

\d)  Hunt.  V.  Royal  Exch.  Comp.  5  M.  «fc  S.  47.  See  also  Read  v.  Bonham,  3  B.  & 
B.  147.  Alridge  v.  Bell,  1  Stark.  498.  Kelly  v.  Walton,  2  Camp.  155.  Abel  v.  Potts, 
3  Esp.  242. 

(e)  Hudson  v.  Harrison,  3  B.  &.  B.  97. 

(/)   Per  Lord  Ellenborough,  1  Camp.  541.     Parmeter  v.  Todhimter. 

(g:)  Thelluson  v.  Fletcher,  1  Esp.  73.  (A)  4  Scott,  33. 


242  OF    AVERAGE    LOSSES. 

but  there  is  a  possibility,  however  remote,  of  its  arriving  at  its  destination,  or 
at  least  of  its  value  being  in  some  way  affected  by  the  means  which  may  be 
adopted  for  the  recovery  or  preservation  of  it.  If  the  assured  prefers  the  cliance 
of  any  advantage  that  may  result  to  him  beyond  the  value  insured,  he  is  at  lib- 
erty to  do  so;  but  then  he  must  also  abide  the  risk  of  the  arrival  of  the  thing 
insured  in  such  a  state  as  to  entitle  him  to  no  more  than  an  average  loss.  If  in 
the  event  the  loss  should  become  absolute,  the  underwriter  is  not  the  less  liable 
upon  his  contract,  because  the  assured  has  used  his  own  exertions  to  preserve 
the  thing  insured,  or  has  postponed  his  claim  till  that  the  event  of  a  total  loss 
has  become  certain  which  was  before  uncertain."  This  principle  must  equally 
apply  to  all  cases,  whether  they  turn  out  total  losses  or  merely  average  ones.  I 
must,  however,  observe,  before  we  enter  on  the  consideration  of  average  losses 
in  particular,  that  there  is  in  the  after  part  of  the  policy  a  clause,  called  the 
"memorandum,"  by  which  the  underwriters  protect  themselves  from  the  pay- 
ment of  average  losses  on  the  insurance  of  some  particular  goods,  unless  gen- 
eral, or  the  ship  be  stranded.  Of  this  more  hereafter,  when  we  come  to  the 
memorandum  itself. 

In  the  case  I  have  just  mentioned,  where  one  point  of  the  case  was,  whether 
the  loss  was  an  average  or  total  loss,  Lord  Abinger  observes,  "that  upon  the 
first  point  it  had  been  contended  that  even  if  these  goods  (hides)  had  not  been 
excepted  from  average  loss  by  the  memorandum,  (unless  upon  condition  of  the 
stranding  of  the  ship)  there  would  not  in  that  case  be  a  total  loss,  and  that,  a 
fortiori^  being  goods  so  expressly  excepted  from  average  loss  by  the  policy, 
they  could  not  become  totally  lost  so  long  as  any  part  of  them  remained  in 
r  *4^fi  "1  ^P^^i^  ^*  the  termination  of  the  risk ;  that  the  *risk  terminated 
L  J  when  the  goods  were  taken  out  at  Rio  cle  Janeiro,  when  they 

were  so  far  from  being  destroyed  by  the  perils  of  the  sea,  that  they  were 
actually  sold  as  hides,  and  were  capable  of  being  tanned.  It  seems  to  us  that 
there  is  no  ground  whatever  for  this  assumed  distinction  between  goods  that 
are  subject  to  an  average  loss  unconditionally,  and  goods  excepted  by  the 
memorandum  from  such  a  loss.  The  interest  which  the  assured  may  have  in 
certain  cases  to  convert  a  loss  into  a  total  one,  may  be  a  fair  argument  to  a  jury 
upon  a  doubtful  question  of  fact  as  to  the  nature  of  the  loss,  or  the  motive  of 
abandonment.  But  there  is  neither  authority  nor  principle  for  the  distinction 
in  point  of  law ;  whether  a  loss  be  total  or  average  in  its  nature  must  depend 
upon  general  principles.  The  memorandum  does  not  vary  the  rules  upon 
which  a  loss  shall  be  average  or  total :  it  does  no  more  than  preclude  the 
indemnity  for  an  ascertained  average  loss,  except  on  certain  conditions. 

There  is  a  fallacy  in  applying  the  words  "termination  of  the  risk,"  to  the 
delermination  of  the  adventure  before  that  period  by  peril  of  the  sea.  The 
object  of  the  policy  is  to  obtain  indemnity  for  any  loss  that  the  assured  may 
sustain,  by  the  goods  being  prevented,  by  the  perils  of  the  sea,  from  arriving 
in  safety  at  tlie  port  of  their  destination.  If  by  reason  of  the  perils  insured 
against,  the  goods  do  not  so  arrive,  the  risk  may  in  one  sense  be  said  to  have 
terminated  at  the  moment  the  goods  are  finally  separated  from  the  vessel. 
Whether,  upon  such  an  event,  the  loss  is  total  or  average,  no  doubt,  depends 
upon  circumstances.  But  the  existence  of  the  goods,  or  any  part  of  them  in 
sj)ocie,  is  neither  a  conclusive,  nor  in  many  cases,  a  material  circumstance  to 
tiiat  question.  If  the  goods  are  of  an  imperishable  nature,  if  the  assured 
become  possessed  of  or  can  have  the  control  over  them,  if  they  still  have  an 
opporliiuity  of  senrhng  them  to  their  destination,  the  mere  retardation  of  their 
arrival  at  their  original  port,  may  be  of  no  prejudice  to  them  beyond  the  expense 
of  reshipment  into  another  vessel.  In  such  a  case,  the  loss  can  be  but  an  average 
r  *437  1  ^^^^■>  ^"^  must  be  so  deemed,  *evcn  though  the  assured  should  for 
-'  some  real  or  supposed  advantage  to  themselves,  elect  to  sell  the 


OF    AVERAGE    LOSSES.  243 

goods  where  they  have  been  landed,  instead  of  taking  measures  to  transmit  them 
to  their  original  destination.  Accordingly,  in  the  case  of  Hunt  v.  Royal  Ex- 
change Company^  («)  the  judgment  of  Lord  EUenborongh  contains  a  very 
important  passage,  wliich  distinguishes  it  from  the  present  case.  He  says, 
"if,  indeed,  the  cargo  has  been  of  a  perishable  nature,  this  would  not  have 
been  a  case  of  retardation  only,  but  of  the  destruction  of  the  thing  insured ;" 
and  further,  he  says,  "I  cannot  necessarily  infer  that  the  flour  would  be 
changed  in  quality  and  condition  by  the  delay  from  November  to  April,  so  as 
to  incur  any  material  damage  operating  a  destruction  of  the  thing  insured." 
And  in  the  case  of  Jlnderson  v.  Wallace,  (6)  the  goods  consisted  of  copper 
which  was  wholly  uninjured,  and  of  iron  which  was  partially  damaged :  the 
assured  by  their  own  agent  had  possession  of  them,  the  ship  was  capable  of 
repair,  and  might  have  prosecuted  the  voyage,  and  did,  in  four  weeks  after  the 
accident,  sail  upon  another  voyage ;  upon  which  ground,  combined  with  other 
circumstances,  the  Court  held  the  loss  7iot  to  be  total.  But  it  is  clear,  from 
the  judgment  of  the  Court,  that  if  by  reason  of  the  perils  of  the  sea,  the  goods 
could  never  be  sent  to  their  destination,  the  loss  would  have  been  held  to  be 
total.  In  like  manner,  it  will  be  found  in  other  cases  cited,  that  there  has 
always  existed  one  or  more  circumstances  in  combination  with  that  of  the  goods 
existing  in  specie,  to  induce  the  judgment  that  the  loss  was  not  total :  as  in 
Glennie  v.  The  Royal  Exchange  Company,  (c)  the  rice  had  arrived  at  its  port 
of  destination,  and  though  damaged,  was  delivered  to  the  consignees,  and  in  a 
saleable  state  as  rice.  In  Thompson  v.  The  Royal  Exchange  Company,  {d) 
the  tobacco  and  sugar,  though  damaged  by  the  perils  of  the  sea,  were  in  the 
hands  of  the  owner  at  Heligoland :  and  as  stated  by  Lord  Ellenborough, 
*(in  his  judgment,)  might  for  any  reason  that  appeared,  have  been  p  *4qo  -\ 
forwarded  to  the  port  of  their  destination.     In  Anderson  v.  The  L  -J 

Royal  Exchange  Company,  (a)  the  wheat  was  partly  saved,  was  in  the  hands 
of  the  shipper  at  Waterford,  was  kiln-dried,  and  might  have  been  forwarded, 
as  tlie  rest  of  the  cargo  was,  after  the  same  operation  to  its  port  of  destination ; 
but  the  owner,  after  dealing  with  it  as  his  own,  abandoned  it  too  late,  even  if 
he  had  a  right  to  abandon  it  at  all.  In  the  case  before  us,  the  jury  have  found 
that  the  hides  were  so  far  damaged  by  a  peril  of  the  sea,  that  they  never  could 
have  arrived  in  the  form  of  hides ;  by  the  process  of  fermentation  and  putre- 
faction which  had  commenced,  a  total  destruction  of  them  before  their  arrival 
at  their  port  of  destination,  was  as  inevitable  as  if  they  had  been  cast  into  the 
sea,  or  consumed  by  fire.  Their  destruction  not  being  consummated  at  the 
time  they  were  taken  out  of  the  vessel,  they  became  in  that  state  a  salvage  for 
the  benefit  of  the  party  who  was  to  sustain  the  loss,  and  were  accordingly  sold ; 
and  the  facts  of  the  loss  and  the  sale  were  made  known  at  the  same  time  to  the 
assured.  Neither  he  nor  the  underwriters  could  at  that  time  exercise  any  control 
over  them,  or  by  any  interference  alter  the  consequences.  It  appears  to  us, 
therefore,  that  this  was  not  the  case  of  what  has  been  called  a  constructive  loss, 
but  of  an  absolute  total  loss  of  the  goods  :  they  could  never  arrive  ;  and  at  the 
same  moment  when  the  intelligence  of  the  loss  arrived,  all  speculation  was  at 
an  end." 

We  see  from  this  part  of  the  judgment  in  Roux  v.  Salvador,  in  what  con- 
sists the  essential  difierence  between  a  total  and  an  average  loss  in  the  case  of 
goods. 

It  is  the  same  with  respect  to  the  difference  between  the  average  or  total  loss 
of  the  ship.     The  ease  of  Cambridge  v.  Jlnderlon  {b)  is,  as  Lord  Abinger 


(a)  5  M.  &  S.  47.  (i)  2  M.  &  S.  240. 

(c)  2  M.  &  S.  371.  (d)   16  East,  214. 

(a)  7  East,  38.  {b)  2  B.  &  C.  697. 


244  OF    AVERAGE    LOSSES. 

says  in  the  same  judgment,  similar  in  all  points  to  the  case  of  Roux  v.  Salva- 
r  *ziQQ  1  ^^'''*'  ^^  °"^  relating  to  the  goods,  the  other  to  the  ship :  and  that 
L  J  case  is  *an  express  decision,  that  where  the  subject-matter  insured 

has  by  a  peril  of  the  sea  lost  its  form  and  species — where  a  ship,  for  example, 
has  become  a  wreck  or  a  mere  congeries  of  planks,  and  has  been  bo7ia  fide 
sold  in  that  state  for  a  sum  of  money,  the  assured  may  recover  a  total  loss 
without  any  abandonment.  So  Chief  Justice  Tindal,  in  the  recent  case  of 
Benson  v.  Chapman,  [a)  (which  was  referred  to  in  a  former  part  of  this  sec- 
tion) says — "It  is  unnecessary  to  cite  authorities,  to  prove  that  where  damage 
to  the  ship  is  so  great,  from  the  perils  insured  against,  as  that  the  owner  cannot 
put  her  in  a  state  of  repair  necessary  for  the  pursuing  the  voyage  insured, 
except  at  an  expense  greater  than  the  value  of  the  ship,  he  is  not  bound  to  incur 
that  expense,  but  is  at  liberty  to  abandon  and  treat  the  loss  as  a  total  loss." 
But  in  the  case  of  Doyle  v.  Dallas,  tried  before  Lord  Tenterden  at  Guildhall, 
on  a  policy  of  insurance  on  the  ship  Triton,  averring  a  total  loss  by  perils  of 
the  sea.  The  ship  had  been  wrecked,  and  was  sold  by  the  owner,  and  soon 
afterwards  got  off  by  the  purchaser,  though  at  a  great  expense ;  Lord  Tenter- 
den, in  summing  up  to  the  jury,  said,  "The  only  question  is,  whether  this 
amounts  to  a  total  loss?  The  ship  is  not  bodily  and  specifically  lost;  but  cir- 
cumstances may  have  occurred,  which,  according  to  the  law  established  in  cases 
of  marine  insurance,  are  equivalent  to  a  total  loss.  1  think  the  circumstances 
in  this  case  will  have  that  effect,  if,  at  the  time  of  the  sale,  that  measure,  on 
the  sound  exercise  of  the  best  judgment  appeared  most  beneficial  to  all  parties. 
It  is  not  enough  that  the  owner  acted  honestly  in  the  sale,  and  intended  to  do 
for  the  best,  the  underwriters  are  not  liable  unless  he  formed  a  correct  judg- 
ment, that  is  to  say,  the  best  and  soundest  judgment  which  could  be  formed 
under  the  circumstances  which  then  existed.  Nothing  less  than  this  will  make 
a  total  loss,  while  the  ship  continues  in  existence.  If  the  ship  could  have 
come  to  England  even  in  ballast,  (certainly  with  any  cargo)  so  that  on  her 
r  *44.0  1  arrival  *she  would  have  been  worth  the  money  expended  on  her, 
L  -^  she  ought  to  have  been  repaired  for  the  purpose.      The  loss  of  the 

voyage  will  not,  in  my  opinion,  make  a  constructive  total  loss  of  the  ship. 
Some  cases  have  been  so  decided ;  but  as  the  thing  remained  in  specie,  I  do 
not  think  that  it  amounted  to  a  total  loss.  The  best  thing  for  the  underwriters 
must  be  done  not  merely  for  the  owner,  and  as  they  indemnify  only  against  the 
loss  of  the  ship,  the  loss  of  the  voyage  would  not  injure  them.  Taking  all 
the  circumstances  into  your  consideration,  if  you  are  of  opinion  that  the  plain- 
tiff, acting  as  he  did,  exercised  a  sound  judgment  as  well  for  the  benefit  of  the 
underwriters  as  for  his  own  interest  as  owner,  did,  what  at  the  time  was  best 
for  all  parties — your  verdict  will  pass  for  the  plaintiff — if  otherwise,  for  the 
defendant."  Verdict  for  the  defendant.  A  motion  was  afterwards  made  for  a 
new  trial  which  was  refused. 

After  these  observations  with  regard  to  average  losses,  and  with  the  reference 
whicli  I  have  made  to. a  few  of  the  leading  cases  which  draw  the  line  of  dis- 
tinction between  them  and  total  losses,  either  constructive  requiring  abandon- 
ment to  the  underwriters,  or  absolute  total  losses,  Avhen  the  thing  insured  has 
actually  lost  its  form  and  species  which  require  no  abandonment ;  we  will  now 
confine  our  attention  to  the  subject  of  average  losses  in  particular,  and,  as  the 
principles  of  law  on  this  head  are,  as  upon  most  other  heads  of  marine  insurance 
law,  to  be  gathered  from  the  words  of  that  great  Judge,  Lord  Mansfield,  I  shall 
at  once  refer  the  reader  to  the  very  important  case  of  Lewis  and  another  v. 
Jiucker,  (b)  fully  treated  of  in  a  former  part  of  this  Treatise,  (c) 

(a)  7  Scott's  N.  R.  p.  641,  and  ante,  p.  394. 

(t)  2  Burr.  11G7.  (c)  Ante,  p.  363. 


OF    AVERAGE    LOSSES.  245 

In  a  subsequent  case  of  Ze  Cras  v.  Hughes,  (c)  Lord  Mansfield  said,  that  the 
case  of  Lewis  v.  Rucker  should  be  the  rule  in  all  similar  cases,  viz :  wherever 
there  was  a  specific  descriptiou  of  casks  or  goods :  but  in  Le  Cras  v.  Hughes, 
the  property  which  consisted  in  various  goods  taken  *from  an  p  j. .  ,,  -, 
enemy,  was  valued  at  the  sum  insured,  and  part  was  lost  by  the  L  J 

perils  of  the  sea;  consequendy  the  same  rule  could  not  be  adopted,  on  account 
of  the  nature  of  the  thing  insured.  The  only  mode  was  to  go  into  an  account 
of  the  whole  value  and  take  a  proportion  of  that  sum,  as  the  amount  of  the 
goods  lost. 

In  the  case  of  Dick  and  another  v.  Allen,  (a)  which  was  an  action  before 
Mr.  J.  Jhdler,  upon  a  policy  of  insurance  to  recover  an  average  loss  upon 
goods,  the  learned  Judge  observed,  that  in  such  cases,  whether  the  goods  arrived 
at  a  good  or  bad  market,  was  immaterial,  for  the  true  way  of  estimating  the 
loss,  was  to  take  them  at  the  fair  invoice  price. 

And  in  Thelluson  v.  Bewick,  (b)  it  was  held  by  Lord  Kenyan,  that  in  a 
policy  of  insurance  the  underwriter  does  not  insure  against  any  loss  that  may 
arise  from  the  difference  of  the  exchange. 

In  Jlmery  v.  Rodgers,  (c)  which  was  an  insurance  on  the  ship  Dart  from  St. 
Kitts  to  London,  on  which  the  defendant  had  underwritten  200/.,  the  plaintifl' 
had  written  to  his  agent  in  I^ondon  to  effect  a  policy  on  ship  and  cargo,  calcu- 
lating the  ship  at  1,500/.  of  that  sum.  No  goods  were  ever  loaden  on  board. 
Lord  Kemjon,  though  he  first  doubted,  afterwards  adopted  the  rule  which  the 
special  jury  assured  him  was  established  at  IJoyd''s  Coffee-house  for  setding 
losses  of  this  kind,  namely,  that  as  the  policy  never  attached,  the  assured  was 
entided  to  recover  such  a  proportion  of  the  sum  which  die  defendant  had  under- 
written, as  the  property  on  which  the  policy  attached  bore  to  the  whole. 

Mr.  Justice  Park  observes,  ((/)  "that  as  clearness  and  precision  are  neces- 
sary upon  all  subjects,  and  more  especially  upon  this,  that  it  is  to  be  borne  in 
mind,  that  when  we  speak  of  the  underwriter  being  liable  to  pay,  whether  for 
total  or  average  losses,  they  are  liable  only  in  proportion  to  the  p  ^aao  "i 
sums  *which  they  have  underwritten.     Thus  if  a  man  underwrite  L  -J 

100/.  upon  property  valued  at  500/.,  and  a  total  loss  happen,  he  shall  pay 
100/.,  that  being  the  amount  of  his  subscription:  and  if  only  an  average  loss 
amounting  to  60/.  or  70/.  per  cent.,  then  he  shall  pay  only  60/.  or  70/.,  being 
his  proportion  of  the  loss. 

The  learned  Judge  has  left  this  passage  widiout  the  qualification  which  more 
recent  experience  should  have  suggested;  he  was  aware  of  the  case  of  Ze 
Chcminant  v.  Pearson,  [a)  for  it  appears  in  the  last  edition  by  him  in  a  note 
at  page  49,  but  it  ought  to  have  been  referred  to  at  the  part  of  his  Treatise  from 
which  I  have  copied  his  general  observations  of  the  payments  to  which  die 
underwriter's  liabdities  are  limited.  However,  dismissing  this  remark,  I  must 
refer  to  the  subject,  to  shew  that  those  observations  of  the  learned  author  must 
be  taken  now  with  several  grains  of  allowance.  The  liability  of  the  under- 
writer is  not  restricted  to  the  single  amount  of  his  subscription,  but  he  may  be 
subject  either  to  several  average  losses,  or  to  an  average  and  total  loss,  or  to 
money  expended  (in  the  words  of  the  policy  which  form  part  of  the  head  of 
this  section)  "in  and  about  the  defence,  safeguard,  and  recovery  of  the  ship," 
to  a  nuich  greater  amount  than  his  subscription,  (b)  I  shall  first  refer  to  the 
case  I  have  just  mentioned,  and  afterwards  to  some  other  authorities. 

(c)  B.  R.  East,  22  Geo.  3.  Park  Ins.  p.  233. 

(a)  At  Guild,  after  Mich.  Term,  1785.     Park  Ins.  226. 

(b)  Sit.  after  Mich.  34  Geo.  3,  1  Esp.  77.      (c)   1  Esp.  207. 
Id)  Park  Ins.  p.  221.  (a)  4  Taunt.  367. 

(6)  See  also  per  Lord  Abinger,  in  Brooks  v.  M'Donnell,  1  Y.  «fc  C.  515. 


246  OF    AVERAGE    LOSSES. 

In  that  case,  which  was  on  a  policy  of  insurance  on  a  ship,  "at  and  from 
Jersey  to  a  port  or  ports  in  Norway,''''  the  first  count  of  the  declaration  averred 
that  during  the  voyage  the  ship,  by  force  of  the  winds  and  the  waves,  and  by 
the  perils  of  the  sea,  was  damaged  to  the  amount  of  373/.  13s.  lOd,  and  that 
thereupon  the  assured,  their  factors,  servants,  and  assigns,  did  sue,  labour,  and 
travel  for,  in  and  about  the  defence,  safeguard,  and  recovery  of  the  ship,  and 
thereby  incurred  charges  and  expenses,  to  wit,  to  the  amount  of  373/.  13s. 
lOrf.  ',  and  averred  that  the  proportion  contribu table  by  the  defendant,  according 
r  *44^  1  ^^  ^^^^  ^^^^  ^'^^  amount  of  *his  subscription,  amounted  to  12/.  9s.  ; 
L  .    J  and  that  afterwards  the  vessel  sailed  from  Jersey,  on  the  voyage 

insured,"  and  during  the  voyage  was  captured  and  wholly  lost,  by  reason  whereof 
the  defendant  became  liable  to  pay  the  plaintiff  312/,  9s.,  according  to  the  effect 
of  his  policy.  The  second  count  proceeded  on  the  total  loss  only ;  and  there 
were  also  the  common  money  counts.  The  fact  was,  that  the  vessel  had  been 
injured  by  a  gale  of  wind  while  lying  in  the  port  of  Jersey,  previous  to  her  voy- 
age, and  had  sustained  the  average  loss,  which  was  admitted  and  was  repaired 
by  the  plaintiff;  afterwards  the  vessel  was  captured.  The  question  upon  this 
part  of  the  case  was,  whether  there  was  any  legal  objection  to  the  plaintiff's 
recovering  an  average  loss  arising  in  the  former  part  of  the  voyage,  and  for  a 
total  loss  afterwards.  Upon  this  point  C.  J.  Mansfield  said,  "a  policy  of 
insurance  is  a  very  strange  instrument,  as  we  all  know  and  feel ;  in  practice, 
I  know  of  cases  in  the  Court  of  King's  Bench  where  such  expenses  have  been 
recovered  as  an  average  loss,  without  making  any  distinction,  whether  it  was 
recoverable  as  an  average  loss  from  damage  repaired,  or  within  the  words  of  the 
permission  to  "sue,  labour,  travel,"  &c.,  and  as  no  such  distinction  has  been 
made,  we  find  it  safer  to  adhere  to  the  common  practice,  which  has  obtained,  and 
to  call  it  all  average  damage."     The  plaintiff,  therefore,  recovered  both  sums. 

But  as  we  must  never  lose  sight  of  the  main  principle  of  law,  that  the 
assured  upon  a  contract  of  indemnity  is  not  to  recover  for  what  he  has  not  in 
fact  been  actually  damnified,  a  most  important  distinction  is,  in  this  place,  to 
be  drawn  between  a  case  of  the  above  description,  and  one  in  which,  bv  the 
intervention  of  subsequent  circumstances,  the  previous  deterioration  of  the' sub- 
ject-matter is  ultimately  a  matter  of  perfect  indifference  to  the  assured's  inter- 
ests. And  this  is  the  great  principle  contained  in  the  case  of  lAvie  v.  Janson, 
which  was  referred  to  in  a  former  section,  for  the  position  "  causa  proxima 
r  *444  1  ^^^'^  remota  spedatur/^  (a)  In  that  case  the  *sliip,  which  was 
^  ■  -*  "warranted  free  from  American  condemnation,"  was  driven  on 

shore  in  the  night,  where  she  received  a  partial  damage,  but  was  seized  the 
next  day,  and  condemned  by  the  American  government;  and  the  Court  of 
King's  Bench  held,  that  as  ihere  was  a  total  loss  excepted  out  of  the  policy, 
the  assured  could  not  recover  for  the  previous  average  loss,  which  in  the  event 
became  wholly  immaterial  to  the  assured.  Lord  Ellenborough,  C.  J.,  said, 
"considering  tlie  deterioration  of  the  ship  and  cargo  as  to  the  extent  of  what 
is  referable  to  the  head  of  sea-damage,  we  think  we  may  lay  it  down  as  a  rule, 
that  where  the  property  deteriorated  is  afterwards  totally  lost  to  the  assured, 
and  the  previous  deterioration  becomes  ultimately  a  matter  of  perfect  indifl'er- 
cnce  to  his  interests,  he  cannot  make  it  the  ground  of  a  claim  upon  the  under- 
writers. The  object  of  a  policy  is  indemnity  to  tlie  assured  ;  and  he  can  have 
no  claim  to  indemnity  where  there  is  ultimately  no  damage  to  him  from  any 
peril  insured  against.  If  the  property,  whether  damaged  or  undamaged,  would 
have  been  equally  taken  away  from  him,  and  the  whole  loss  would  have  fallen 
upon  him  had  the  property  been  ever  so  entire,  how  can  he  be  said  to  have 
been  injured  by  its  having  been  antecedently  damaged?" 


(«)   12  East,  648.     Ante,  p.  271. 


OF    AVERAGE    LOSSES.  247 

In  this  case  we  must  observe,  that  the  accident  which  occasioned  the  average 
loss,  and  tlie  cause  of  tlie  total  loss,  formed  parts  of  one  continued  transaction, 
and  that  there  was  no  endeavour  made  by  the  assured,  or  expense  incurred  by 
them  in  repairing  it,  between  tlie  interval  of  the  average  and  total  loss.  His 
Lordship  goes  on  to  say,  "There  may  be  cases  in  which,  though  a  prior 
damage  be  followed  by  a  total  loss,  the  assureil  may,  nevertheless,  have  rights 
or  claims  in  respect  of  that  prior  loss,  which  may  not  be  extinguished  by  the 
subsequent  total  loss.  Actual  disbursements  for  repairs  in  fact  made,  in  con- 
sequence of  injuries  by  perils  of  the  seas  prior  to  the  happening  of  the  total 
loss,  are  of  this  description ;  indeed,  they  are  more  properly  to  be  considered 
as  covered  by  that  autliority,  with  which  the  assured  is  generally  invested  by 
the  policy  of  'suing,  labouring,  and  travailing,'  &.C.,  *in  which  p  ^^^^  -■ 
case  the  amount  of  such  disbursem.ents  might  move  properly  be  L 
recovered  as  money  paid  for  the  underwriter,  under  the  direction  and  allowance 
of  this  provision  in  the  policy,  than  to  a  substantive  average  loss  to  be  added 
cumulatively  to  the  total  loss  which  is  afterwards  incurred  in  consequence  of 
sea  risks." 

This  subject  was  mentioned,  and  the  cases,  (which  I  have  just  considered) 
referred  to,  in  a  very  important  and  recent  case  of  Stewart  v.  Steele,  (a)  I 
shall  state  the  case  the  more  fully  on  account  of  its  general  applicability  to  the 
subject  of  this  section. 

This  was  an  action  on  a  policy  of  insurance  "for  twelve  calendar  months, 
commencing  the  1st  3Iay,  1835,'^and  ending  30th  April,  1836,  both  days  inclu- 
sive, in  port  or  at  sea,  in  all  places,  at  all  times,  and  on  all  services,  upon  any 
kind  of  goods  and  merchandises,  and  also  upon  the  body,  tackle,  apparel,  ord- 
nance, munition,  artillery,  boat,  and  other  furniture  of  and  in  the  good  ship  or 
vessel  called  the  Sherlm'rne,  valued  at  8,000/."  The  declaration,  after  setting 
out  the  policy  and  averring  the  plaintift"'s  interest  in  the  ship,  stated  that  on  the 
1st  of  71/t/^,"l835,  the  said  ship  was  in  safety  in  harbour  at  Bombay,  in  the 
East  Indies  ;  that  afterwards,  and  before  the  30th  April,  1836,  to  wit,  on  the 
20th  Avgnst,  1835,  whilst  the  said  ship  was  protected  by  the  said  policy,  the 
said  ship  was,  by  the  perils  of  the  sea  and  by  stormy  and  tempestuous  weather, 
and  by  the  violence  of  the  winds  and  waves,  greatly  strained,  bulged,  broken, 
and  otherwise  damaged  in  her  body,  rudder,  Ijowsprit,  irons,  and  other  parts, 
whereby  it  became  necessary  to  repair  the  damage  done  to  the  said  ship  as 
aforesaid ;  that  after  such  damage  had  arisen  as  aforesaid,  and  in  consequence 
thereof,  the  plaintiff,  by  himself  and  servants  and  agents,  to  wit,  on  the  day 
and  year  last  aforesaid,  did  labour  for,  in,  and  about  the  safeguard,  safety,  and 
preservation  of  the  said  ship  or  vessel,  and  in  so  doing,  and  in  and  about  the 
necessary  repair  of  the  said  ship,  by  *rea3on  of  the  damages  so  by  p  ^^^g  -■ 
him  sustained  as  aforesaid,  did  necessarily  lay  out  and  expend  a  •- 
larcre  sum  of  money,  to  wit,  the  sum  of  1,000/.,  whereby  the  defendant, 
according  to  the  terms  of  the  said  policy,  and  of  his  said  promise  and  imder- 
taking,  then  became  liable  to  pay,  and  ought  to  have  paid  the  plaintiff  150/., 
being  the  rateable  proportion  of  the  expense  aforesaid,  which  the  defendant 
ought  to  have  paid  and  contributed  in  respect  of  the  insurance  aforesaid,  whereof 
the  defendant  then  had  notice ;  and  that  afterwards,  and  during  the  continuance 
of  the  risk,  and  whilst  the  said  ship  in  the  said  policy  of  insurance  mentioned 
was  protected  by  the  said  policy,  to  wit,  on  the  10th  of  October,  1835,  the 
ship  in  the  said  policy  mentioned,  by  stormy  weather,  &c.,  became  and  was 
wholly  lost  to  the  plaintiff,  of  which  premises  he,  the  defendant  had  notice. 

There  was  also  a  count  for  money  had  and  received,  and  a  count  upon  an 
account  stated. 


(a)  5  Scott's  N.  R.  927. 


248  OF    AVERAGE    LOSSES. 

The  defendant  first  as  to  so  much  of  the  first  count  as  stated,  &c.  (following 
the  allegation  of  the  count)  the  defendant  saith  the  plaintiff  ought  not  further  to 
maintain  his  action,  because  the  defendant  brings  into  Court  the  sum  of  18/. 
18s.  ready  to  be  paid  to  the  plaintiff,  and  the  defendant  saith  the  plaintiff  hath 
not  sustained  damages  to  a  greater  amount  than  the  said  sum  of  18/.  18*.,  in 
respect  of  the  said  causes  of  action  in  the  introductory  part  of  that  plea  men- 
tioned. Sic. 

Secondly,  he  pleaded  to  so  much  of  the  first  count  as  stated,  that  the  said 
ship  was  lost  by  storms,  &c. ,  that  the  said  ship  was  not  lost  by  storms,  winds, 
&c.,  concluding  to  the  country.     Thirdly,  to  the  two  last  counts  non  assumpsit. 

The  cause  was  tried  before  T"indal,  C.  J.,  at  the  Sittings  at  Guildhall,  after 
Hil.  Term,  1841.  The  Sherburne  left  Calcutta  on  the  11th  /?</?/,  1835,  with 
goods  and  passengers  for  England.  In  going  down  the  river  Hooghley,  the 
steamer  which  was  towing  her,  came  athwart  her  hawse,  striking  her,  accord- 
ing to  the  plaintiff's  witnesses,  with  considerable  violence  on  the  larboard  bow. 
The  Sherburne  proceeded  on  her  voyage,  but  was  found  so  leaky  as  to  be 
r  *447  1  ^obliged  to  return  to  Calcutta,  which  she  did  on  23rd  July.  On 
L  J  her  return  there  she  was  put  into  dock,  and  surveyed  by  a  ship- 

builder and  by  a  surveyor  to  the  Calcutta  Insurance  Office,  and  also  by  the  sur- 
veyor to  the  agents  to  Lloyd'' s.  She  underwent  some  repair  and  recoppered  : 
and  set  sail  for  England,  but  she  was  again  compelled  to  return,  was  put  into 
a  dock,  her  wales,  &c. ,  removed  for  the  purpose  of  examining  the  condition  of 
her  timbers,  and  was  ultimately  found  so  defective,  as  to  render  it  inexpedient 
to  repair  her;  and  consequendy  she  was  sold  as  she  lay,  for  the  purpose  of 
being  broken  up.  Notice  of  abandonment  was  given  on  the  9th  October,  1835, 
before  the  sale.  On  the  part  of  the  plaintiff,  it  was  insisted  that  the  under- 
writers were  liable  for  all  the  expenses  incurred  on  both  occasions  of  the  vessel's 
return  to  Calcutta,  including  the  recoppering  and  the  replacing  the  wales.  For 
the  defendant,  it  was  submitted  that  the  underwriters  Avere  only  liable  for  that 
which  was  the  immediate  and  necessary  result  of  a  peril  insured  against,  and 
they  were  not  liable  for  the  expense  of  recoppering,  nor  the  expense  which 
would  have  been  incurred  had  the  wales  been  replaced ;  nor,  indeed,  for  any 
of  the  expenses  incurred  on  the  second  return  of  the  vessel.  The  money  paid 
into  Court,  (six  guineas  per  cent.)  was  sufficient  to  cover  the  expenses  incurred 
upon  the  first  occasion,  excluding  the  new  coppering.  And  it  was  agreed  that 
in  the  event  of  the  jury  finding  for  the  plaintiff  on  the  first  issue  only,  the  dam- 
ages should  be  referred.  The  Lord  Chief  Justice  in  his  summing  up,  told  the 
jury  that  they  were  to  say  with  a  reference  to  the  first  issue,  whether  or  not 
enough  had  been  paid  into  Court  to  cover  the  average  loss :  that  the  under- 
writers were  liable  for  aU  the  consequences  that  naturally  and  necessarily  flowed 
from  the  injury  sustained  by  the  Sherburne,  from  the  collision  with  the  steamer 
on  the  11th  of  July :  that  beyond  this  there  were  two  points  for  their  consid- 
eration,— first,  whether  the  underwriters  were  not  also  liable  for  the  expense 
of  recoppering  the  vessel  on  her  first  return  to  Calcutta, — secondly,  whether 
r  ^^.AAQ  -\  ^^^  repairs  not  having  *been  completely  and  effectually  done  upon 
•-  -^  the  first  occasion,  they  were  not  also  liable  for  the  expenses  incur- 

red on  the  second  ?  that  if  the  new  coppering  was  rendered  necessary  by  the 
natural  decay  and  wear  of  the  old  copper,  or  in  consequence  of  the  collision : 
that  if  the  stripping  off  the  copper  were  rendered  necessary  by  the  collision, 
the  expense  of  replacing  it  and  restoring  the  ship  to  a  navigable  state,  must  fall 
on  the  underwriters  ;  otherwise  not.  As  to  the  second  issue,  his  Lordship  left 
it  to  tlie  jury  to  say,  whether  or  not  the  total  destruction  and  loss  of  the  ship 
Avas  the  result  of  the  collision. 

The  jury  having  retired  for  a  considerable  time,  returned  into  Court  with  the 
following  verdict: — 


OF    AVERAGE    LOSSES.  249 

Verdict  for  tlic  plaintiff  on  the  first  issue,  sufficient  not  having  heen  paid  into 
Court  to  cover  the  expense  of  stripping  olf  and  replacing  the  copper,  for  all 
the  repairs  and  charges  on  both  occasions  of  the  return  of  the  vessel  actually 
incurred,  and  also  what  would  have  been  necessary  for  replacing  the  wales, 
which  we  consider  was  the  consequence  of  the  collision.  A  rule  7iisi  for  a 
new  trial,  on  the  ground  that  the  verdict  was  against  evidence,  was  obtained  on 
the  part  of  the  defendant. 

On  the  argument  on  sliowing  cause,  it  was  argued  for  the  plaintiff,  that  he 
was  entiUed  to  recover  the  expense  actually  incurred  in  removing  them,  and 
also  that  which  would  have  been  incurred  had  they  been  replaced. 

Maule,  J. — Do  you  contend  that  if  the  ship  sustains  an  average  loss  in  the 
course  of  a  voyage,  and  she  is  afterwards  totally  lost,  the  average  damage 
never  having  been  repaired,  the  assured  could  recover  in  respect  of  the  average 
loss  ? 

Imdal,  C.  J. — Here  the  expense  was  never  incurred,  how  then  can  the 
underwriters  be  charged  with  it  ? 

Maule,  J. — Suppose  a  vessel  loses  a  mast  by  a  peril  insured  against;  if  the 
mast  be  replaced,  no  doubt  the  underwriters  are  liable :  but  suppose,  after  the 
loss  of  the  mast  and  before  the  vessel  is  refitted,  she  is  totally  lost,  whether  by 
a  peril  insured  against,  or  in  consequence  of  some  wrongful  act  p  *44q  l 
*for   which  the  underwriters   are  not  liable — could   the  assured  ^  -■ 

recover  in  respect  of  the  average  loss.^     Clearly  he  could. 

Maule,  J. — "It  has  repeatedly  and  consistently  with  good  sense  been  decided 
that  he  cannot.  There  was  a  case  of  Livie  v.  Junsoyi,  [a)  where  an  American 
vessel  was  insured,  '  warranted  free  from  American  condemnation :'  after  she 
had  sailed  on  her  voyage  she  sustained  damage,  which  had  it  been  repaired, 
would  undoubtedly  have  fallen  on  the  underwriters  :  she  was  however  not  re- 
paired ;  and  she  afterwards,  being  ashore  in  the  St.  Laivrence,  was  captured  by 
the  American  government,  and  the  underwriters  were  held  not  responsible  for 
the  average  loss.  The  same  principle  was  acted  upon  in  the  case  of  Blackett 
V.  The  Royal  Exchange  Company,  (h)  where  it  was  held,  that  on  a  memo- 
randum 'free  from  average  under  three  per  cent.,'  the  underwriter  Avas  liable 
for  the  amount  of  the  aggregate  of  several  average  losses,  each  less  than  three 
per  cent.,  though  amounting  together  to  more." 

After  the  argument : 

Tindal,  C.  J. — "It  seems  to  me  that  the  jury  were  clearly  wrong  in  treat- 
ing the  cost  of  replacing  the  wales  as  an  expense  falling  within  the  description 
of  an  average  loss,  when  that  expense  has  not  been  incurred  at  all,  in  conse- 
quence of  the  act  of  the  assured  himself.  The  jury  say,  they  find  for  'the 
plaintiff  on  the  first  issue,  sufficient  not  having  been  paid  into  Court  to  cover 
the  expenses  of  stripping  off  and  replacing  the  copper,  and  for  all  the  repairs 
and  charges  on  both  occasions  on  the  return  of  the  vessel  to  Calcutta  actually 
incurred. '  If  they  had  stopped,  I  should  have  been  satisfied  with  the  verdict, 
but  they  add,  '  and  also  that  which  would  have  been  necessary  for  replacing 
the  wales :'  the  whole  of  which  they  considered  were  the  consequences  of  the 
collision.  Now  the  ship  was  dismantled  and  the  wales  removed,  for  the  pur- 
pose of  ascertaining  the  real  state  of  her  timbers.  All  that  was  perfectly  correct, 
and  the  expenses  they  incurred  were  an  *immediate  consequence  p  *450  "1 
of  the  average  loss  which  had  been  sustained,  and  the  expenses  in  ^  -■ 

respect  to  which  the  assured  is  entitled  to  be  indemnified.  The  jury  have  done 
wrong  in  allowing  for  the  possible  expense  which  the  plaintiff  might  have  incur- 
red in  replacing  the  wales,  but  which  he  refused  to  incur,  and  did  not,  in  fact, 


(a)   12  East,  648 ;  ante,  pp.  271,  443.         (Jb)  2  Cr.  «Sc  J.  244. 


250  OF    AVERAGE    LOSSES. 

incur,  treating  the  ship  in  a  totally  different  view.  The  proper  measure  of  dam- 
ages, in  my  opinion,  is  the  average  loss  that  was  the  immediate  and  necessary 
consequence  of  the  collision,  together  with  such  charges  and  expenses  as  may 
be  said  to  be  incident  thereto ',  and  that  does  not  embrace  the  expenses  for  the 
wales.  If,  therefore,  the  case  does  not  go  down  again,  the  verdict  should  be 
amended  by  striking  out  so  much  as  relates  to  the  wales." 

Maule,  J.,  concurred  respecting  the  wales.  He  then  said, — "It  has  been 
suggested  that  the  measure  of  tlie  damages  being  matter  for  discretion  for  the 
jury,  the  Court  cannot  interfere  when  they  have  adopted  an  erroneous  measure, 
but  only  when  they  have  not  acted  bond  fide.  It  is,  however,  the  constant 
practice  of  tlie  Court  to  grant  new  trials  where  the  damages  have  been  assessed 
on  an  erroneous  principle ;  and  it  has  never  been  doubted  but  that  it  is  perfectly 
competent  for  the  Court  to  do  so. 

"I  apprehend  that  the  expenses  incurred  by  the  owner  for  repairing  a  ship 
can  be  recovered  from  the  underwriters  only  by  one  of  two  ways.  One  is, 
where  they  are  for  repairs  actually  done,  and  prudently  and  properly  done  5 
then  they  are  a  fit  measure  of  the  loss  which  the  assured  has  sustained ;  he  is 
so  much  the  worse  for  a  peril  within  the  policy.  It  is  not  sufficient,  however, 
that  the  expenses  should  have  been  actually  incurred,  in  order  to  entitle  the 
assured  to  recover  them :  it  is  also  necessary  that  they  should  have  been  pro- 
perly and  prudently  incurred,  to  make  them  a  fit  measure  of  the  assured's  loss. 
Suppose  they  are  actually  incurred,  but  under  circumstances  in  which  no  pru- 
dent man  would  attempt  to  repair  the  damage,  but  would  submit  to  it,  and  treat 
r  *'A^^  "1  ^^'^  ^'^'P  ^^  ^*^  much  the  worse;  or  suppose  an  anchor  dropped 
L  J  *from  the  ship  and  lost,  being  a  peril  within  the  terms  of  the  policy, 

possibly  the  anchor  may  be  recovered  at  an  expense  far  exceeding  its  intrinsic 
value ;  would  the  expense  actually  incurred  in  either  case  be  the  proper  mea- 
sure of  damages  .P  Clearly  not.  The  assured,  therefore,  must  recover  the  ex- 
penses, not  eo  nomine  as  expenses,  but  as  the  measure  of  the  loss,  where  they 
are  bona  fide  and  prudendy  incurred  ;  and  in  such  cases  the  jury  would  deal  lib- 
erally towards  the  assured.  Expenses  of  this  sort  fall  within  that  clause  of  the 
policy  which  enables  the  assured  to  lay  out  money  for  the  benefit  of  all  con- 
cerned. Money  so  laid  out,  and  prudendy  laid  out,  may  be  recovered  from 
the  underwriters.  In  the  present  case,  the  jury  have,  by  that  part  of  the  ver- 
dict which  is  not  now  complained  of,  found  that  the  underwriters  are  liable  for 
the  whole  amount  of  the  expenses  actually  and  bond  fide  incurred.  That  puts 
out  of  the  question  any  claim  to  recover  in  respect  of  money  laid  out  under 
the  clause  as  to  suing,  labouring,  travailing,  &c.,  and  reduces  it  to  the  question, 
whether  the  plaintiff  is  entitled  to  recover,  in  respect  of  the  ship  being  so  much 
the  worse?  It  is  said  that  the  plaintiff  had  a  vested  right  of  action  at  the  mo- 
ment of  the  happening  of  the  loss,  which  nothing  could  afterwards  divest. 
That,  I  apprehend,  is  quite  contrary  to  the  doctrine  laid  down  by  Lord  Ellen- 
borough,  in  Livie  v.  Janson,  («)  and  contrary  to  the  principle  acted  upon  in 
Blackett  v.  The  Royal  Exchange  .Assurance  Company,  {b)  and  also  contrary 
to  diat  of  the  case  there  cited  of  Cheminant  v.  Pearson,  (c)  In  Blackett  v. 
The  JRoyal  Exchange  Assurance  Company,  the  assured  having  incurred  ex- 
pense to  a  considerable  amount  during  the  voyage,  and  there  being  afterwards 
a  total  loss,  recovered  120/.  against  an  underwriter,  who  had  subscribed  100/. 
for  an  average  and  the  subsequent  total  loss;  the  100/.  not  being  like  the  pen- 
alty in  a  bond,  the  limit  of  the  underwriter's  liability,  but  the  proportion  of  the 
loss  he  was  liable  for.     That  case  establishes  this  principle,  that  the  proper 


(a)   12  East,  648.  (6)  2  Cr.  &  J.  244. 

(c)  4  Taunt.  367. 


OF    AVERAGE    LOSSES.  251 

time  to  estimate  the  loss,  where  the  *party  is  put  to  no  expense,  is  j-  ^.-.  -, 
at  the  expiration  of  the  risk.     In  the  present  case  the  risk  expired  L  J 

when  the  voyage  was  put  an  end  to  by  tlie  sale  of  the  ship,  for  the  purpose  of 
heing  broken  up  ;  and  at  that  time,  according  to  the  evidence,  the  plaintiff  was 
not  damnified,  by  the  wales  not  having  been  replaced;  for,  if  they  had  been 
replaced,  bearing  in  mind  the  other  facts  in  the  case,  the  ship  would  still  have 
been  sold  as  a  wreck  for  breaking  up.  My  opinion  is,  that,  if  the  plaintiff  had 
incurred  the  expense  of  replacing  the  wales,  and  afterwards  sold  the  ship  to  be 
broken  up,  the  money  so  imprudenUy  laid  out  would  not  have  been  recoverable 
from  the  underwriters.  The  assured  is  entided  to  recover  the  amount  by 
which  the  ship  is  deteriorated  by  the  accident ;  but,  for  the  reasons  already 
mentioned,  that  does  not  comprehend  the  expense  of  replacing  the  wales. 
Upon  this  point,  therefore,  the  jury  have  come  to  an  erroneous  conclusion  ;  and 
consequendy,  there  ought  to  be  a  new  trial."  Rule  absolute  for  a  new  trial, 
on  payment  of  costs. 

The  rule  by  which  an  average  loss,  occasioned  by  sea-damage  is  to  be  ascer- 
tained, underwent  much  discussion ;  in  the  case  of  Johnson  v.  Sheddon,  (a) 
and  a  very  able  and  elaborate  judgment  was  pronounced  on  the  occasion  by 
Mr.  Justice  Lawrence,  who  began  that  judgment  by  declaring,  that  the  loss  is 
to  be  estimated  by  the  rule  laid  down  in  Lewis  v.  Rucker,  that  the  underwriter 
is  not  to  be  subjected  to  the  lluciuation  of  the  market :  that  the  loss,  for  which 
alone  he  is  responsible,  is  the  deterioration  of  the  commodity  by  sea-damage ; 
and  that  he  is  not  liable  for  any  loss  which  may  be  the  consequence  of  the 
duties  or  charges  to  be  paid  after  the  arrival  of  the  commodity  at  the  place  of 
his  destination.  The  parties  agreed  that  the  damage  was  to  be  ascertained  by 
considering,  whether  the  commodity  was  a  third,  a  fourth,  or  a  fifth  worse; 
and  it  was  also  agreed,  that  that  could  only  be  done  by  the  price  at  die  port  of 
delivery.  But  the  only  question  was,  whether  that  price  was  to  be  ^  *4-o  "i 
*ascertained  by  the  net  proceeds,  or  by  the  gross  produce.      But  L  -' 

the  Court  held,  that  the  calculation  was  to  be  made  on  the  difference  between 
the  respective  gross  proceeds  of  the  same  goods  when  sound  and  when  damaged, 
and  not  on  the  net  proceeds.  The  main  stress  of  the  argument  in  favour  of  the 
judgment  is  this,  that  bv  taking  the  net  proceeds  as  the  basis  of  the  calculation, 
instead  of  the  gross  proceeds,  it  will  happen,  that  where  equal  charges  are  to 
be  paid  on  the  sound  and  damaged  commodity,  the  underwriter  will  be  affected 
by  the  fluctuation  of  the  market,  which  he  ought  not  to  be.  Thus,  suppose 
sound  goods,  including  all  charges,  sell  for  600/.  the  damaged  for  300/.  let  the 
charges  on  each  be  100/.,  the  diflerence  after  they  are  deducted,  will  be  300/. 
or  three-fifths.  But  let  the  goods  come  to  a  fallen  market  with  die  same  degree 
of  deterioration,  let  the  sound  sell  for  300/.,  the  damaged  for  150/.,  and  deduct 
the  charges  as  before,  the  net  proceeds  of  the  one  will  be  220/.  the  other  50/., 
so  the  underwriter  wdll  in  this  case  have  to  pay  three-fourths.  But  as  the 
deterioration  is  the  same  in  both  cases,  the  underwriter  should  pay  the  same, 
whatever  be  the  state  of  the  market,  which  he  will  do  if  the  gross  produce  be 
taken,  namely,  half  the  valued  or  invoice  price.  Another  consequence  of  taking 
the  net  produce  will  be,  that  the  underwriter  will  be  made  responsible  for  a  loss 
not  arising  from  the  deterioration  of  the  commodity  by  sea-damage,  but  for  that 
loss  which  tlie  assured  sutlers  from  being  liable  to  pay  the  same  charges  on  the 
sound  and  damaged  commodity.  This  will  be  illustrated  by  the  case  put  of 
two  ships  arriving  with  the  same  commodity  equally  damaged ;  one  being  sub- 
ject to  duties  and  charges,  and  tlie  other  to  none :  the  degree  of  deterioration 
being  the  same,  the  underwriters  should  pay  alike  in  both  cases.     Suppose 


(a)  2  East,  581. 


252  OF    AVERAGE    LOSSES. 

then  the  cargoes  be  deteriorated  one-half,  and  the  demand  and  the  state  of  the 
market  the  same,  and  that  the  goods,  if  sound,  would  sell  for  1,000/.,  but  being 
damaged,  for  500/.,  and  the  charges  to  be  200/.  On  those  goods,  whore  no 
charges  are  to  be  paid,  the  insurer  will  have  to  pay  one-half,  or  50/.  per  cent. 
_    ^  1  '^'^^  *goods,  where  charges  are  to  be  paid,  being  equally  good  with 

L  ^'*^^  J  the  other,  will  sell  for  the  same  sum,  and  when  200/.  are  deducted 
for  charges,  will  in  one  case  leave  a  net  produce  of  800/.  in  the  other  of  300/.  ; 
and  thus,  if  the  underwriter  were  to  pay  according  to  this  calculation,  he  would 
pay  five-eighths  instead  of  four-eighths,  or  one-half;  not  because  the  one  cargo 
has  suffered  more  dian  the  other  by  the  sea,  for  the  supposition  is  that  the  sea- 
damage  is  the  same  in  both;  but  from  commodities  of  unequal  value  being 
subjected  to  equal  duties  and  charges." 

The  same  question  came  before  the  Court  of  Common  Pleas  in  Michaelmas 
Term,  1802,  in  the  case  of  Hurry  v.  The  Royal  Exchange  Company,  [a] 
when  that  Court  fully  approved  of  the  rule  so  ably  laid  down  by  Mr.  Justice 
Laivrcnce,  and  determined  that  the  loss  must  be  calculated  upon  the  gross,  and 
not  upon  the  net  proceeds  of  the  goods  insured  at  the  port  of  delivery. 

In  the  case  of  Usher  v.  Noble,  {b)  it  was  argued,  that  the  rule  in  Lewis  v. 
JRucker  did  not  apply  to  open  policies :  but  the  Court  held,  that  the  rule  for 
estimating  any  loss  of  goods  insured  by  an  open  policy,  is  to  take  the  invoice 
price  at  the  port  of  loading,  together  with  the  premium  of  insurance  and  com- 
mission, as  the  basis  of  the  calculation  of  the  value  of  the  goods:  and  the  rule 
for  estimating  an  average  loss  in  the  like  case  is  the  same  as  upon  a  valued 
policy,  by  taking  the  proportional  difference  between  the  selling  price  of  the 
sound  and  that  of  the  damaged  goods  at  the  port  of  delivery,  and  applying  that 
proportion  witli  reference  to  such  estimated  value  at  the  loading  port  to  the 
damaged  portion  of  the  goods. 

Where  in  the  case  of  Bousfield  v.  Barnes,  (c)  a  party  had  insured  his  ship 
with  the  London  Assurance  Company,  for  6,000/.,  valuing  it  at  8,000/.,  and 
by  tlie  policy  in  question  valued  it  at  6,000/.,  but  only  600/.  were  subscribed, 
r  *-i55  ~\  ^^'^^'^  Ellenboroiigh  was  of  opinion,  that  on  such  a  valued  policy 
L  -"it  *was  no   defence  to  prove  that  the  assured  had  received  the 

whole  amount  of  the  valuation  in  this  policy  from  the  underwriters  on  another, 
if  the  subject-matter  insured  be  proved  to  be  of  a  value  equal  to  the  sum 
received,  and  that  sought  to  be  recovered.  Thus  the  plaintiff  has  only  re- 
ceived 6,000/.  ;  he  has  therefore  an  interest  of  2,000/.  to  which  he  may  apply 
this  policy.  But,  as  only  600/.  have  been  subscribed  upon  it,  when  he  recovers 
that  sum,  he  will  still  be  a  loser  of  1,400/.  by  the  total  loss  of  the  vessel. 

But  in  Lving  v.  Richardson,  {a)  where  a  person  makes  two  insurances 
declaring  the  same  value  in  each,  he  cannot  recover  more  than  that  sum  though 
the  subject-matter  of  the  insurance  be  of  sufficient  value.  Thus  in  an  action 
for  money  had  and  received.  The  defendant  had  insured  1,700/.  on  the  ship 
Swift  sure,  valued  at  3,000/.,  with  a  company  at  Glasgow,  and  had  afterwards 
insured  2,000/.  with  the  Alliance  Marine  Assurance  Company,  upon  the 
same  ship  valued  again  at  3,000/.  The  ship  was  lost,  and  the  defendant  re- 
ceived the  amount  of  the  insurances  from  lioth  companies.  This  action  was 
brought  to  recover  the  proportion  paid  by  the  Alliance  Company  of  the  700/. 
the  excess  of  the  whole  sum  paid  above  the  valuation.  The  ship  was  proved 
to  be  really  worth  more  than  3,700/.  the  sum  received  on  the  two  policies. 
There  was  a  question  of  fact,  whether  the  defendant,  who  was  mortgagee  of 
the  ship  for  less  than  3,000/.  had  effected  the  policy  for  his  own  benefit  only, 


(a)   3  Bos.  &  Pull.  308.  {},)    12  East,  639. 

(c)  4  Camp.  228.  \a)   1  M.  &  R.  153. 


OF    AVERAGE    LOSSES.  253 

or  for  that  of  the  mortgagor  also ;  and  it  was  contended  for  the  defendant,  that 
if  the  jury  thought  that  the  insurance  was  effected  for  the  benefit  of  the  mort- 
craffor^is  well  as  of  the  mortgagee,  the  plaintiff  was  not  entitled  to  recover,  and 
the  case  of  Boiisjicld  v.  Barnes  was  cited  as  an  authority.  The  jury  found 
for  the  plaintifl",  on  the  ground  that  the  defendant  had  insured  his  owner's 
interest  only  as  mortgagee.  Lord  Tenterden,  C.  J.  said,  "I  was  prepared  to 
urive  my  opinion  in  point  of  law,  if  it  had  been  necessary,  that  this  case  is  not 
governed  by  that  *cited.  There  the  sum  mentioned  as  the  value  p  ^j.  .^p  -i 
was  different  in  the  two  insurances;  here  it  was  the  same,  I  am  L  J 

of  opinion  that  where  a  person  effects  two  insurances,  declaring  the  same  value 
in  each,  he  is  bound  by  that  sum,  and  cannot  receive  beyond  that  sum." 

In  the  case  of  freight  policies  the  usage  at  Lloyd^s  is  to  calculate  the  loss 
upon  the  gross  amount,  and  not  upon  the  net  value  of  the  freight.  It  has  been 
said  that  the  interest  on  freight  ought  to  be  that  sum,  and  no  more,  which  the 
owner  calculates  on  receiving  in  case  of  the  safe  arrival  of  the  ship  :  because 
in  case  the  ship  is  lost  that  is  all  he  loses.     But  the  practice  is  different.  («) 

This  principle  was  adhered  to  lately  in  the  case  of  Palmer  v,  Blackbiirne,  (b) 
where  the  freight  which  the  assured  would  have  had  to  receive  in  case  of  the 
safe  arrival  of  the  ship  would  have  been  3,008/.,  out  of  which  there  would 
have  been  a  deduction  of  699/.  9s.  for  seamen's  wages,  pilotage,  light  dues, 
tonnage,  duty,  and  dock  dues  which  they  were  exempted  from  paying  by  the 
loss  of  the  vessel.  At  the  trial  it  was  proved  by  merchants  of  great  experience 
that  though  open  policies  on  freight  were  very  rare,  the  uniform  custom  in 
setding  losses  upon  them  had  been  to  pay  the  assured  on  the  amount  of  the 
gross  freight.  The  jury  found  a  verdict  in  conformity  with  the  custom,  and 
the  Court  afterwards  admitted  the  legality  of  it. 

Mr.  J.  Park  in  his  Treatise  says,  (c)  "that  by  the  ordinances  oi^  Hamburgh 
it  is  declared,  that  in  case  of  a  damage  to  goods,  the  assured  is  not  to  open 
their  damaged  goods,  but  in  the  presence  of  the  assurers  or  the  deputies ;  but 
if  time  and  circumstances  do  not  give  opportunity  to  call  them,  yet  the  goods 
must  not  be  opened,  but  in  the  presence  of  a  notary  and  some  witnesses :  (rf) 
but  I  can  find  no  such  regulation  in  the  law  of  insurance  in  England,  nor  do 
I  understand  that  any  such  is  adopted  in  practice.  Indeed  it  seems  to  be  need- 
less;  ^because  an  assured,  in  order  to  entitle  himself  to  recover  r-  ^Afr^  -i 
for  an  average  loss,  must  prove  by  disinterested  witnesses,  to  the  L  J 

satisfaction  of  the  jury,  the  quantity  of  goods  damaged  in  the  course  of  the 
voyage.     The  parties  may,  however,  insist  upon  being  present." 

As  the  common  memorandum,  which,  as  I  have  before  observed,  is  in  the 
last  part  of  the  policy,  I  would  have  taken  it  in  its  order,  had  it  not  rather  par- 
taken of  the  character  of  a  mere  memorandum  as  it  is,  in  fact,  called,  than 
making  part  of  the  regular  terms  and  words  of  the  policy :  it  is  not  easy, 
besides  to  treat  of  the  subject  of  "average  losses"  fully,  without  taking  with 
us  the  consideration  of  the  "common  memorandum :"  which  is  in  the  follow- 
ing terms  : — 

Memorandum. — N.  B.  Corn,  fish,  salt,  fruit,  flour,  and  seed,  are  warranted 
free  from  "average,"  unless  general,  or  the  ship  be  stranded.  Sugar,  tobacco, 
hemp,  flax,  hides,  and  skins,  are  warranted  free  from  "average"  under  five 
per  cent.;  all  other  goods,  also  the  sliip  and  freight  are  warranted  free  from 
"average,"  unless  general,  or  the  ship  be  stranded. 

Lord  Abinger,  in  his  judgment  in  Roux  v.  Salvador,  [a)  to  which  we  have 
so  often  referred,  says,  "The  memorandum  does  not  vary  the  rules  upon  which 


(a)  See  Stev.  on  Aver.  192.  (6)  1  Bing,  62. 

(c)  Park  Ins.  237.  (d)  2  Mag.  228. 

(o)  4  Scott,  p.  24. 


254  OF    AVERAGE    LOSSES. 

a  loss  shall  be  average  or  total — it  does  no  more  than  preclude  the  indemnity 
for  an  ascertained  average  loss,  except  on  certain  conditions.  It  has  no  appli- 
cation to  a  total  loss,  or  to  the  principles  by  which  a  total  loss  is  to  be  ascer- 
tained." 

It  will  1ie  necessary  to  observe  here,  that  most  of  the  goods  mentioned  in  the 
memorandum,  are  of  a  perishable  nature ;  and,  therefore,  when  they  are  dam- 
aged by  such  natural  and  inherent  principle  of  corruption  in  themselves,  the 
underwriters,  by  the  ordinances  of  most  countries  are  held  to  be  discharged.  (6) 
The  underwriters  we  see  are  not  answerable  for  any  average  loss,  unless  it  be 
by  way  of  a  general  average;  and  some  goods  are  warranted  free  under  five 
r  *4P1R  1  P*^^  cent.,  others  *under  three  per  cent.,  unless  general  or  the  ship 
L  J  be  stranded,  (o) 

And  it  is  usual,  to  say,  when  in  actions  on  policies  of  insurance,  which  gen- 
erally contain  this  "memorandum,"  that  when  the  ship  is  stranded,  that  has 
the  effect  of  taking  the  goods  of  this  nature  out  of  the  terms  and  words  of  the 
exception  in  the  memorandum. 

What  shall  amount  to  a  stranding  of  the  ship  within  the  meaning  of  the 
memorandum,  has  been  the  subject  of  many  decisions. 

In  a  case  of  Dobson  v.  Bolton,  [b)  at  Guildhalh  Lord  Kenyon  told  the 
jury,  "that  ships  running  on  some  wooden  piles  four  feet  under  water,  erected 
in  JVisbeach  river  about  nine  yards  from  the  shore,  but  placed  there  to  keep 
up  the  banks,  and  lying  on  such  piles  till  they  were  cut  away,  was  a  stranding 
within  the  poHcy,  so  as  to  subject  the  underwriter  to  an  average  loss  on  corn." 

But  it  is  not  every  touching  or  striking  upon  a  fixed  body  in  the  sea  or  river, 
that  will  constitute  a  stranding.  Thus,  Lord  Ellenborongh  in  the  case  of  Mac- 
dougoUv.  The  Royal  Exchange  Assurance  Company ,  [c)  held,  that  in  order  to 
establish  a  stranding,  the  ship  must  be  stationary ;  for  that  merely  striking  on 
a  rock,  and  remaining  there  a  short  time,  (as  in  the  case  then  at  the  Bar,  about 
a  minute  and  a  half,)  and  then  passing  on,  though  the  vessel  may  have  received 
some  injury,  is  not  a  stranding.  Lord  Ellenboroiigh's  language  is  important. 
Ex  vi  termini,  stranding  means  lying  on  the  shore,  or  something  analogous  to 
that.  To  use  a  vulgar  phrase,  which  has  been  applied  to  this  subject,  if  it  is 
touch  and  go  with  the  ship,  there  is  no  stranding.  It  cannot  be  enough  that 
the  ship  lay  for  a  few  moments  on  her  beam  ends.  Every  striking  must  neces- 
sardy  produce  a  retardation  of  the  ship's  motion.  If  by  the  force  of  the  ele- 
r  *459  1  '^^"^^  *^'^'^  ^^  ™'^  aground,  and  becomes  stationary,  it  is  immaterial 
L  J  whether  this  be  on  piles,  on  the  muddy  bank  of  a  river,  or  on  rocks 

on  the  sea  shore  :  but  a  mere  striking  will  not  do,  wherever  that  may  happen. 
I  cannot  look  to  the  consequences  without  considering  the  causa  causans. 
There  has  been  a  curiosity  in  the  cases  about  stranding  not  creditable  to  the 
law.     A  little  common  sense  may  dispose  of  them  more  satisfactordy. 

But  in  the  case  of  Harman  v.  Vaux,  (a)  it  was  held,  where  a  ship  is  forced 
on  shore,  or  is  driven  on  a  bank,  and  remains  on  the  ground  for  any  time,  this 
constitutes  a  stranding,  without  reference  to  the  degree  of  damage  ^hich  she 
thereby  sustains. 

In  another  case  of  Carrufhers  v.  Sydebotham,  (b)  in  the  King's  Bench,  the 
question  of  stranding  was  much  considered.     By  the  52  Geo.  3,  c.  39,  the 


(b)   Ordinances  of  France,  Stockholm,  and  Hamburgh. 

(h)  And  the  average  losses  must  amount  to  three  or  five  per  cent,  without  the  charges, 
in  order  to  render  the  underwriters  liable.      Stevens  on  Average,  231. 

(b)  Sit.  after  East.  1799.      Park  Ins.  239.      (c)   4  Camp.  283. 

(ffl)  4  Camp.  429,  and  see  Barrow  v.  Bell,  4  B.  &  C.  736.  In  Baring  v.  Harkle  at 
Guildhall,  1801,  1  Marsh.  232,  Lord  Kenyon  held,  that  where  a  ship  was  run  foul  of  by 
two  others  and  driven  aground,  where  she  remained  an  hour,  this  was  not  a  "stranding." 

(6)  4  M.  «Sc  S.  77. 


OF    AVERAGE    LOSSES.  255 

general  Pilot  Act,  the  captain  of  every  ship  is  obliged  to  take  licensed  pilots, 
where  they  can  be  had,  under  a  penally.  I3ut  sect.  30  provides  that  no  owner 
or  master  of  any  ship  shall  be  answerable  for  any  loss,  nor  prevented  from 
recovering  upon  any  insurance,  by  reason  of  any  neglect,  default,  &;c.,  of  any 
pilot  taken  on  board  under  any  provisions  of  that  act.  Thus  where  a  ship, 
under  the  conduct  of  a  pilot,  in  her  course  up  the  river  to  Liverpool,  was, 
against  the  advice  of  the  master,  fastened  at  the  pier  of  the  dock  basin  by  a 
rope  to  the  shore,  left  there,  and  she  took  the  ground,  and  when  the  tide  left 
her  she  fell  over,  by  which  seed  (the  subject-matter  insured)  was  damaged  :  the 
Court  held  this  to  be  a  stranding,  it  not  being  essential  to  constitute  a  strandino" 
that  it  be  the  consequence  of  storms,  it  being  a  sea  peril,  and  immediately 
occasioned  by  sea  water  upon  the  strand,  (c) 

*And  the  Court  held,  that  though  this  pilot  was  appointed  under  p  i^Aan  ~\ 
a  local  Liverpool  Act  of  37  Geo.  3,  c.  78,  yet  the  general  Pilot  L  '^""  J 
Act,  above  referred  to,  expressly  refers  to  pilots  duly  appointed  within  par- 
ticular districts.  This  man  was  regularly  appointed ;  and  sect.  30  of  the 
general  act  decides,  that  the  misconduct  of  such  an  one  shall  not  prevent  the 
assured  from  recovering  upon  any  insurance. 

But  it  was  decided  in  the  case  of  Hearne  v.  Edmunds,  [a)  where  it  is  cer- 
tain that,  in  the  ordinary  course  of  the  navigation,  the  vessel  would,  by  the  flux 
and  reflux  of  the  tide,  be  left  on  the  mud,  that  this  is  not  a  stranding  within  the 
meaning  of  that  term  in  the  policy. 

And  in  a  subsequent  case  of  Rayner  v.  Godmond,  [b)  Lord  Chief  Justice 
Mhott  takes  notice  of  this  distinction.  The  circumstances  of  this  case  were 
as  follows  : — In  the  course  of  the  voyage  the  ship  arrived  at  a  place  called  Beat 
JjOck,  and  whilst  she  was  there  it  became  necessary,  for  the  purpose  of  repair- 
ing the  navigation,  that  the  water  should  be  drawn  oflf.  The  master  placed  the 
vessel  in  the  most  secure  place  he  could  find,  alongside  of  four  other  vessels. 
The  water  being  then  drawn  olf,  all  the  vessels  grounded,  and  the  ship  in 
question  unfortunately  grounded  upon  some  piles  in  the  river  which  were  not 
known  to  be  there,  and  the  cargo  received  considerable  damage.  The  part  of 
the  navigation  where  she  took  the  ground  was  one  in  which  vessels  usually 
were  placed  when  the  water  was  drawn  off.  At  the  trial.  Best,  J.,  was  of 
opinion  that  these  facts  amounted  to  a  stranding,  and  the  plaintiff  had  a  verdict. 
Upon  a  motion  for  a  new  trial,  which  was  refused,  Jlbbott,  C.  J.,  said,  "The 
case  of  Hearne  v.  Edmunds  has  relieved  my  mind  from  the  only  remaining 
difficulty  which  I  felt  in  this  case,  which  was,  lest  it  should  follow  from  our 
decision,  or  from  that  of  Carruthers  v.  Sydebotham,  that  every  settling  on  the 
ground  by  a  vessel  should  be  deemed  a  stranding;  but  that  case  was  decided 
on  a  distinction,  which  leaves  Carruthers  v.  Sydebotham  a  valid  r-  ^  .„,  -, 
*authority ;  for  there  the  accident  happened  in  the  ordinary  course  ^  J 

of  the  voyage ;  and  on  that  ground  the  underwriters  were  held  not  to  be  liable. 
Here  the  loss  did  not  so  happen,  for  we  cannot  suppose  that  these  canals  are  so 
constantly  wanting  repair,  as  to  make  the  drawing  off  of  the  water  an  occurrence 
in  the  ordinary  course  of  the  voyage." 

And  in  the  more  recent  case  of  Bishop  v.  Pentland,  (c)  where  the  ship  in 
the  course  of  her  voyage  was  compelled  to  put  into  a  tide  harbour,  and  was 
there  moored  alongside  a  quay,  in  the  usual  place  for  ships  of  her  burthen,  it 
became  necessary,  in  addition  to  the  usual  moorings,  to  fasten  her  by  tackle  to 
posts  on  the  shore,  to  prevent  her  falling  over  upon  the  tide  leaving  her.     The 

(c)  See  Thompson  v.  Whitmore,  3  Taunt.  227. 

(a)   1  Brod.  &  Bing.  388.  (i)  5  B.  &  A.  225. 

(cj   7  B.  &  C.  219. 

Vol.  VII.— S 


256  OF    AVERAGE    LOSSES. 

rope  with  which  she  was  thus  fastened  not  being  of  sufficient  strength,  (6)  broke 
when  the  tide  left  the  vessel,  and  she  fell  over  upon  her  side,  and  was  thereby 
stove  in  and  gready  injured.  It  was  held,  that  this  was  a  stranding  witliin  tlie 
meaning  of  that  word  in  the  policy.  But  that  if  she  had  merely  taken  the 
o-round,°without  falling  over  by  accident  on  her  side,  and  been  stove  in,  it  would 
not  have  been  a  stranding.  And  Litthdale,  J.,  says,  "There  seem^s  to  be 
some  contrariety  of  opinion  as  to  the  meaning  of  the  term  'stranding.'  That 
term,  in  its  ordinary  sense,  means  taking  the  ground,  or  being  on  the  strand ; 
but  that  is  not  the  meaning  of  the  word  in  a  policy  of  insurance.  For  this 
vessel's  taking  the  ground  in  the  first  instance  was  not  a  stranding  within  the 
meanino-  of  the  policy.  I  think  it  is  immaterial  whether  a  vessel  takes  the 
ground  "when  she  is  in  th&  course  of,  or  at  the  end  of  the  voyage.  But  when 
a  vessel  is  on  the  ground,  or  stranded,  in  such  a  situation  as  she  ought  not  to 
be  in  while  prosecuting  the  voyage  on  which  she  is  bound,  that  is  a  stranding 
within  the  meaning  of  the  policy.  In  Ilearne  v,  Edmunds,  (c)  the  taking  the 
-,  o-round  *was  no  more  than  was  usual  with  vessels  of  the  same  class 
[  '462  J  proceeding  up  the  river  to  Cork.  When  the  vessel  was  on  the 
trround,  she  was  in  that  situation  in  which  such  a  vessel  proceeding  on  that 
voyage  usually  is  in  when  the  tide  is  low.  So  here,  as  long  as  the  vessel  lay 
on  the  ground,  fastened  to  the  shore  by  the  rope,  she  was  not  stranded ;  but 
when  the  rope  broke,  and  she  fell  over  on  her  side,  and  lay  on  the  ground,  in 
that  position,  I  think  she  was  stranded  within  the  meaning  of  the  policy, 
because  she  then  ceased  to  be  in  a  situation  in  which  a  vessel  driven  by  stress 
of  weather  into  the  port  of  Feele  usually  is." 

In  the  late  case  of  Wells  v.  Hopivood,  (a)  the  question  as  to  what  constitutes 
a  "stranding"  was  fully  considered,  and  all  the  cases  on  the  subject  commented 
on  by  the  learned  Judges,  in  giving  their  opinions. 

It  was  held  by  Lord  Tenterden^  C.  J.,  Littledale,  J.,  and  Taunton,  J.. 
that  the  facts  stated  constituted  a  "stranding,"  within  the  meaning  of  that  word 
in  the  policy.     Parke  J.,  (now  Mr.  Baron  Forke,)  was  of  a  different  opinion. 

The  facts  of  this  case  were  these.  The  ship  sailed  from  London  in  June, 
and  on  the  21st  of  that  month  arrived  at  Hull  harbour,  which  is  a  tide  harbour, 
and  proceeded  to  discharge  her  cargo  at  a  quay  on  the  side  of  it :  this  could  be 
done  at  high  water  only,  and  could  not  be  completed  at  one  tide.  At  the  first 
low  tide  the  vessel  grounded  on  the  mud;  but  on  a  subsequent  ebb,  the  rope  by 
which  her  head  was  moored  to  the  opposite  side  of  the  harbour  stretched,  and 
the  wind  blowing  from  the  east  at  the  time,  she  did  not  ground  entirely  in  the 
mud,  which  it  was  intended  she  should  do,  but  her  fore  part  got  on  a  bank  of 
stones,  rubbish,  and  sand  near  the  quay,  and  the  vessel  having  strained,  some 
damage  was  sustained  by  the  cargo,  but  no  lasting  injury  done  to  the  vessel. 

Lord  Tcnterden,  C.  J. — "Several  of  the  cases  hidierlo  decided  on  this  suh- 

^  "1  J^^'  ^^^'  ^^  ^^  ^^^'^  ''^^^^'  ^'^^y  "^^"^  *^  *each  other,  and  not  easily 

I  ibd  J  jjstinguishabie.  But  it  appears  to  me  that  a  general  principle  and 
rule  of  law  may,  although  not  explicitly  laid  down  in  any  of  them,  be  fairly 
collected  from  the  greater  number.  And  that  rule  I  conceive  to  be  this  :  where 
a  vessel  takes  the  ground  in  the  ordinary  and  usual  course  of  navigation  and 
management  in  a  tide  river  or  harbour,  upon  the  ebbing  of  the  tide,  or  from 
natural  deficiency  of  water,  so  that  she  may  float  again  upon  the  flow  of  tide  or 
increase  of  water,  such  an  event  shall  not  be  considered  a  stranding  within  the 
sense  of  the  memorandum.     But  where  the  ground  is  taken  under  any  extraor- 


(b)  But  though  the  accident  was  to  be  traced  to  the  negligence  of  the  crew  as  a  remote 
cause,  yet  as  the  proximate  cause  of  the  loss  was  one  of  the  risks  insured  against  the  under- 
writers were  held  liable.     Sec  a7ile,  p.  269. 

(c)  1  Brod.  &,  IJing.  388.  (a)  3  B.  &  Ad.  20. 


OF    AVERAGE    LOSSES.  257 

dinary  circuinstnnces  of  time  or  place,  by  reason  of  some  unusual  and  accidental 
occurrence,  such  an  event  shall  be  considered  as  a  stranding  witliin  the  meaning 
of  the  memorandum.  According  to  the  construction  that  has  been  long  put 
upon  the  memorandum,  the  words  '\inIoss  general,  or  the  ship  be  stranded,' 
are  to  be  considered  as  an  exception  out  of  the  exception  as  to  the  amount  of  an 
average  loss,  provided  for  by  the  memorandum,  and,  consequently,  to  leave  the 
matter  at  large  according  to  the  contents  of  the  policy ;  and  as  every  average 
loss  becomes  a  charge  upon  the  underwriters,  wliere  a  stranding  has  taken 
place,  whether  the  loss  has  been  in  reality  occasioned  by  the  stranding  or  no, 
the  true  legal  sense  of  the  word  'stranding'  is  a  matter  of  great  importance  in 
policies  upon  goods.  It  appears  to  me,  that  upon  the  facts  of  this  case,  the 
event  which  has  happened  to  this  ship  is  within  the  second  branch  of  the  rule 
as  above  proposed.  If  the  rope  had  not  slackened,  and  the  wind  had  not  been 
in  such  a  direction  as  it  was,  the  vessel  would  have  remained  safe  during  the 
night ;  for,  although  raised  by  the  influx  of  the  tide,  she  would  at  its  ebb  have 
grounded  again  on  the  soft  and  even  bottom  over  which  she  had  been  placed. 
The  events  that  occurred,  unusual  and  accidental  in  themselves,  caused  the 
vessel  to  quit  that  station,  and  go  in  part  to  another,  where,  upon  the  ebbing  of 
the  tide,  her  fore  part  rested  on  a  stony  bank,  so  as  to  be  above  her  remaining 
part,  *and  to  cause  the  straining  by  which  the  cargo  was  injured  r-  ^^^(^4  -| 
by  the  influx  of  water  through  the  opening  of  the  planks.     I  should  L  J 

observe,  that  my  judgment  in  this  case  is  not  founded  upon  the  fact  of  injury 
to  the  cargo,  or  of  the  want  of  injury  to  the  ship ;  1  do  not  consider  either  of  these 
circumstances  as  being  properly  an  ingredient  in  the  question." 

And  Mr.  Justice  Littledale,  referring  to  the  recent  decision  of  Bishop  v. 
Pentland,  said,  "But  for  the  breaking  of  the  tackle,  the  ship  would  have 
remained  in  the  same  situation  that  ships  usually  are  in  Peelc  harbour  during 
ebb.  In  that  case,  also,  the  vessel  came  to  the  ground  in  a  place  where,  in 
the  ordinary  course  of  proceeding,  she  was  not  meant  to  be,  and  came  there 
by  a  peril  of  the  sea,  and  by  the  grounding  received  damage.  In  both  cases 
the  damage  arose  from  a  rope,  in  the  one  instance  breaking,  in  the  other  stretch- 
inof.  In  that  case  it  is  true  that  the  vessel  fell  on  her  side,  whereas  in  this  she 
grounded,  without  falling  over:  in  that  case,  too,  she  was  materially  injured, 
whereas  here  she  was  only  injured  for  a  few  hours,  and  not  permanently  ;  but 
these  diflferences  do  not  appear  to  me  to  be  of  such  importance  as  to  warrant  a 
difl^erent  judgment " 

For  the  reasons  which  led  Mr.  Justice  Parke  to  differ  from  the  rest  of  the 
Judges  in  this  case,  the  reader  is  referred  to  the  full  report  of  that  learned 
Judge's  opinion.  Suffice  it  to  say,  that  the  grounds  upon  which  that  opinion 
seems  to  have  been  given,  were,  that  the  vessel  had  been  laid  on  the  ground  by 
the  voluntary  act  of  the  master  and  crew,  in  the  course  of  a  voyage  in  which 
the  usage  was  to  lay  vessels  on  the  ground,  and  was  done  in  pursuance  of  that 
usage,  and  the  vessel  was  uninjured  thereby.  (</) 

Upon  this  clause  in  the  policy  there  have  been  several  determinations,  in  all 
of  which  it  has  been  uniformly  held,  that  the  underwriters  can  in  no  case  be 
answerable  for  an  average  loss  to  such  commodities  unless  the  ship  be  stranded, 
*It  may  also  be  proper  to  premise  that  corn  is  the  general  term,  p  *4«;i  n 
and  includes  many  particulars :  peas  and  beans,  (a)  and  malt,  [h)  L  -' 

have  been  hekl  to  come  within  the  meaning  of  the  word,  though  rice  has  been 
held  not  to  be  so  considered,  (c) 

{d)  See  also  Kingsford  v.  Marshall,  8  Bing.  458. 

(a)   Mason  v.  Skurray,  vide  post. 

(6)  Moody  V.  Surridge,  sittings  before  Iiord  Kenyon,  after  Hill.  1798.     Park  Ins.  245. 

(c)  Scott  V.  Bourdillon,  2  New  Rep.  213. 


258  OF    AVERAGE    LOSSES. 

But,  in  the  Court  of  Common  Pleas,  Mr.  Justice  Trilso7i  was  of  opinion, 
that  the  term  salt,  used  in  the  memorandum,  did  not  include  saltpetre.  ((/) 

In  TVilson  v.  Smith,  (e)  an  action  upon  a  policy  of  insurance  was  brought 
for  the  recovery  of  56/.  19s.  8f/.  per  cent.,  being  the  damage  received  by  a 
cargo  of  wheat  on  board  the  Boscawen,  insured  at  and  from  Lancaster  to  Bot- 
tcrdam.  The  wheat  was  valued,  by  agreement,  at  30s.  per  quarter.  The 
policy  was  in  the  ordinary  form,  with  the  usual  clause  at  the  bottom,  that  corn, 
fish,  fruit,  &c.,  should  be  warranted  free  from  average,  unless  general,  or  the 
ship  be  stranded.  The  defendant  underwrote  this  policy  for  100/.  The  defend- 
ant having  pleaded  the  general  issue,  the  cause  came  on  to  be  tried ;  and  a  spe- 
cial case  was  reserved  for  the  opinion  of  the  Court,  stating  that,  after  the  ship's 
departure  from  Lancaster  and  before  her  arrival  at  Rotterdam,  she  met  with  a 
violent  storm ;  that  she  was,  by  and  through  the  force  of  winds  and  stormy 
weather,  obliged  to  cut  away  and  leave  her  cable  and  anchor,  for  the  safety  of 
the  ship  and  cargo ;  that  she  was  also  gi-eady  damaged,  and  obliged  to  run  to 
the  first  port  to  refit ;  that  the  expense  of  refitting  the  ship  amounted  to  38/. 
15s.  per  cent.,  which  the  defendant  in  this  case  had  paid,  being  a  general 
average.  The  case  then  states,  that  the  hatches  were  not  opened  at  Liverpool; 
(the  place  where  she  had  gone  to  repair)  but  the  ship  being  refitted,  proceeded 
on  her  voyage,  and  arrived  at  Rotterdam,  where  her  cargo  of  wheat  was 
landed ;  that,  upon  her  unloading  it,  it  appeared  that  it  had  received  average 
damage  by  the  said  storm  to  the  amount  of  56/.  19s.  8(/.  per  cent. 

^  "1      *The  single  question  was  upon  the  true  construction  and  mean- 

L  ■"*""  J  ing  of  the  words  "free  from  average,  unless  general,  or  the  ship 
be  stranded"— whether  the  plaintiff,  as  there  had  been  a  general  average,  could, 
under  the  circumstances,  recover  in  this  action  for  the  damage  of  56/.  19s.  8rf. 
per  cent,  average  loss,  though  the  ship  had  not  been  stranded.  After  two  argu- 
ments, the  Court  gave  judgment  for  the  defendant. 

Lord  Mansfield. — "Policies  of  insurance,  according  to  their  present  form, 
:tre  very  irregular  and  confused ;  an  ambiguity  arises  in  them  from  using  the 
same  words  in  difierent  senses,  particularly  in  the  use  of  the  word  average.  It 
is  used  to  signify  a  contribution  to  a  general  loss,  and  it  is  also  used  to  signify 
a  particular  average  loss.  But  whether  it  be  considered  in  one  or  other  of  these 
senses,  it  will  not  avail  the  plaintifis  in  this  case.  For  if  it  here  signify  a  con- 
tribution, the  insurer  is  to  be  free  from  contribuUon,  unless  the  contribution  be 
general.  If  it  signify  loss,  then  plainly  it  is  warranted  free  from  all  particular 
loss.  The  insurer  is  liable  to  all  losses  arising  from  the  ship  being  stranded, 
and  in  all  cases  where  there  is  a  general  average ;  but  all  other  average  losses 
are  excluded  by  the  express  terms  of  the  policy.  The  word  'unless,'  means 
the  same  as  'except,'  and  never  can  be  construed  as  a  condition  in  the  sense 
that  the  counsel  for  the  plaintifis  would  put  upon  the  word  'condition,'  namely, 
to  be  free  from  average  loss,  unless  in  two  events,  viz :  a  general  average,  or 
the  stranding  of  the  ship;  but  if  either  of  those  events  did  happen,  then  to  be 
liable  to  all  other  average.  The  words  'free  from  average,  unless  general,' 
can  never  mean  to  leave  the  insurer  liable  to  any  particular  damage.  It  is  clear, 
then,  that  the  plaintiflT  ought  not  to  recover;  and  that  judgment  ought  to  be 
given  for  the  defendant." 

Cocking  V.  Fraser{n)  is  a  case  of  importance  on  this  subject,  reported  by 

Mr.  J.  Park,  though  the  decision  is  doubtful.      It  was  an  action  brought  upon 

^  "1  ^  policy  of  insurance  to  recover  against  the  underwriters  for  a  total 

L      *"'      J  loss  of  the  cargo,  *upon  a  voyage  at  and  from  St.  John''s,  New- 


(d)  Joumu  V.  Bourdieu,  sittings  after  East.  Term,  27  Geo.  3.     Park  Ins.  245. 

(e)  3  Burr.  1550.  («)  B.  B.  25  Geo.  3.     Park  Ins.  247. 


OF    AVKRAGE    LOSSES.  259 

foxmdland,  to  her  port  of  discharge  in  Porfugal.     The  jury  found  a  verdict  for 
the  plaintilT,  subject  to  the  opinion  of  the  Court  upon  a  special  case. 

The  case  states,  that  the  sliip  sailed  from  Newfoundland  on  the  2nd  of  De- 
cember, 1783,  witli  a  cargo  offish  ;  that  on  the  11th  they  hove  overboard  forty 
quintals,  for  the  general  preservation  of  the  ship  and  cargo ;  that  on  the  20th 
they  threw  over  twenty-six  quintals  more,  for  the  same  purpose.  The  ship  had 
exceeding  bad  weather,  till  her  arrival  at  Lisbon,  on  the  lOth  of  January, 
1784,  when  a  survey  was  had,  at  the  request  of  the  captain,  who  was  also  the 
consignee  of  the  goods,  by  the  Board  of  Health  ;  and  it  appeared  to  them,  and 
so  the  fact  was,  that  the  cargo  was  rendered  of  no  value  through  the  dangers  of 
the  sea.  The  ship  did  not  proceed  from  Lisbon  upon  her  destined  voyage. 
The  defendant  has  paid  into  Court  the  amount  of  average  loss  sustained  by  the 
ship,  and  also  the  general  average  upon  the  cargo. 

Lord  Mansfield. — "Most  litigations  arise  from  improper  statements  of  cases, 
and  from  not  properly  defining  terms.  This  clause  relative  to  fruit  and  fish, 
is  now  a  very  old  one  in  policies  of  insurance.  The  assurer  undertakes  for 
all  losses,  except  particular  damage,  unless  the  ship  be  stranded :  he  engages 
against  a  total  loss.  What  is  a  total  loss.?  The  total  loss  of  the  thing  insured 
is  the  absolute  destruction  of  it  by  the  wreck  of  the  ship.  The  fish  may  all 
come  to  port,  though  from  the  nature  of  the  commodity,  it  maybe  damaged,  it 
may  be  stinking:  («)  still,  as  the  commodity  specifically  remains,  the  under- 
writer is  discharged." 

"The  case  oi  Cochins:;  v.  Fraser  has  had  many  observations  made  upon  it, 
and  it  has  been  supposed  by  very  able  judges  to  have  gone  too  far.  Lord 
Kenyon,  in  the  case  of  Burnett  v.  Kensington,  {b)  said,  'that  he  could  not 
subscribe  to  *the  dictum  of  Lord  Mansfield,  in  Cocking  v.  Fraser,  p  ,^^gg  -, 
that  if  the  commodity  specifically  remain,  the  underwriter  is  dis-  L  J 

charged.'  And  Lord  Alvanley,  in  delivering  his  opinion  in  Dyson  v.  Row- 
croft,  (a)  supposes  himself  at  liberty  to  consider  the  case  of  Cocking  v.  Fraser 
as  something  less  strong  than  it  appears  to  be,  in  consequence  of  what  fell  from 
Lord  Kenyon.  But,  with  the  greatest  possible  deference  to  both  these  very 
learned  Judges,  there  is  nothing  objectionable  in  the  doctrine  laid  down  in 
Cocking  V.  Fraser,  if  the  circumstances  of  that  case,  and  to  which  circum- 
stancesalone  Lord  Mansfield'' s  doctrine  is  applicable,  are  considered.  In  the 
case  of  Cocking  v.  Fraser  there  was  no  stranding,  as  in  Burnett  v.  Kensing- 
ton; there  was  no  disability  in  the  ship  to  proceed  to  her  destination,  as  in 
Dyson  v.  Fowcroft,  which,  therefore,  created  a  total  loss  of  the  voyage.  In 
Cocking  V.  Fraser,  it  is  most  evident,  nothing  being  stated  to  the  contrary,  that 
the  reason  why  the  ship  did  not  proceed  to  her  port  of  destination  was,  because 
the  cargo  was  of  no  value,  through  perils  of  the  sea;  this,  therefore,  was  a 
voluntary  and  not  a  compulsory  abandonment  of  the  further  prosecution  of  the 
voyage,  which  will  not,  therefore,  warrant  an  abandonment  as  for  a  total  loss, 
nor  could  the  assured  recover  as  for  an  average  loss,  because  the  cargo  was  one 
enumerated  in  the  policy.  I  have  ever  understood  it  to  be  due  to  every  Judge 
to  take  his  words  with  reference  to  the  case  before  him,  and  not  to  state  his 
doctrine  in  the  abstract,  or  as  a  general  proposition,  without  allusion  to  the  par- 
ticular circumstances  of  the  case  then  in  judgment.  Looking  at  the  case  ol  Cock- 
ing V.  Fraser  in  this  view.  Lord  MansfieUfs  doctrine  is  no  more  than  this  :  — 
*K  the  commodity  (being  one  of  the  enumerated  cargoes)  specifically  remain, 
though  it  may  be  so  damaged  as  to  render  it  on  that  account  the  subject  of  total 


(a)  If  the  fish  was  stinking,  the  loss  must  have  been  total,  for  it  must  have  never  been 
sold,  and  in  most  countries  would  have  been  burnt,  if  exposed  for  sale,  by  authority  of  the 
state. 

(i)  Post,  p.  478.  (a)  Post,  p.  469. 


260  OF    AVERAGE    LOSSES. 

r  *ARQ  1  loss,(&)  if  it  had  not  been  included  in  the  memorandum,  the  *under- 
L  J  Avriter  is  discharged,  because  tliere  has  neither  been  a  stranding,  nor 

has  the  voyage  of  the  ship  been  put  an  end  to  by  any  of  the  perils  mentioned  in 
the  pohcy,  but  because  the  assured  did  not  choose,  on  account  of  the  state  of 
the  cargo,  to  proceed  to  the  port  of  destination.'  The  wisdom  of  such  a  deci- 
sion is  apparent,  for  otherwise  it  would  be  a  constant  temptation  to  the  assured, 
wherever  a  cargo  of  this  description  was  not  likely  to  reach  the  port  of  destina- 
tion in  a  sound  stale,  by  giving  notice  of  abandonment,  to  throw  a  loss  upon  the 
underwriters,  by  voluntarily  giving  up  the  further  prosecution  of  the  voyage, 
to  which  they  are  not  liable  by  the  terms  of  the  memorandum."  (a) 

Dyson  and  others  v.  RouKroft,  (b)  is  a  leading  case  on  this  subject.  It  was 
an  action  on  a  policy  on  fruit  on  board  the  ship  Tartar,  at  and  from  Cadiz  to 
London,  with  the  usual  memorandum.  The  plaintiffs  were  interested  in  the 
fruit.  The  Tartar  sailed  upon  the  voyage  insured  with  the  fruit  on  board : 
but  having  met  with  tempestuous  weather  and  contrary  winds,  was  forced  to 
put  into  Pahna,  and  afterwards  into  Santa  Cruz.  In  the  course  of  this  voy- 
age the  fruit  received  so  much  damage  from  the  sea  water,  that,  on  its  arrival 
at  Santa  Cruz,  it  was  rotten  and  stunk  to  so  great  a  degree,  that  the  govern- 
ment prohibited  the  landing  it,  and  it  was,  therefore,  thrown  overboard.  The 
ship  also  was  so  much  damaged  in  the  course  of  the  voyage,  as  to  be  unable 
to  proceed  upon  the  voyage,  and  was  necessarily  sold.  On  this  special  case, 
the  question  came  before  the  Court. 

Lord  AlvanUy. — "If  I  understand  the  policy,  as  restrained  by  the  memo- 
randum, the  underwriter  agrees,  that  all  commodities  shall  arrive  safe  at  the 
port  of  destination,  notwithstanding  the  perils  insured  against;  but  that  he  will 
not  be  liable  to  pay  for  any  average  loss  on  fish,  or  the  other  articles  contained 
in  the  memorandum,  because  those  commodities  being  liable  to  deterioration, 
from  many  circumstances  independent  of  the  peril  insured  against,  he  would 
r  *4~n  1  continually  be  harrassed  with  claims  for  average  loss  alleged  to 
L  J  have  arisen  *from  the  perils  mentioned  in  the  policy.      Unless, 

therefore,  the  consequence  of  the  damage  sustained  be  the  total  loss  of  the 
commodity,  the  underwriter  does  not  agree  to  be  answerable ;  but  if  the  com- 
modity be  totally  lost  to  the  assured,  he  undertakes  to  pay.  If  this  be  not  the 
meaning  of  the  memorandum,  it  is  badly  expressed ;  and  the  underwriters 
would  have  done  better  if  they  had  said,  tliat  they  would  not  be  answerable, 
unless  the  commodities  enumerated  actually  went  to  the  bottom.  The  question 
is,  what  is  a  total  loss.^  I  admit  that  the  circumstances  of  cases  like  the  pre- 
sent arc  generally  suspicious.  If  the  voyage  be  protracted,  deterioration  neces- 
sarily takes  place ;  and  it  becomes  the  interest  of  the  captain  and  mariners  to 
turn  the  injury  into  a  total  loss.  But  this  is  a  matter  for  the  consideration  of  a 
jury.  We  ought,  indeed,  to  look  at  the  case  with  some  suspicion,  where  there 
is  so  much  temptation  to  throw  the  cargo  overboard.  But  here  it  is  found  that 
the  necessity  of  so  doing  arose  from  sea  water  shipped  during  the  course  of  the 
voyage ;  and  that  the  commodity  was  in  such  a  state,  that  it  could  not  be  suf- 
fered to  remain  on  board  consistently  with  the  health  of  the  crew.  In  conse- 
quence of  this  necessity,  therefore,  the  commodity  was  annihilated,  by  being 
thrown  overboard.  Had  it  not  been  so  annihilated  it  would  have  been  annihi- 
lated by  putrefaction  :  and  is  it  not  as  much  lost  to  the  assured,  by  being  thrown 
overboard,  as  if  the  captain  had  waited  until  it  had  arrived  at  complete  putre- 
faction ?     The  case  of  Cocking  v.  Frascr  was  the  only  thing  which  raised  any 


(b)  Mr.  J.  Park's  observations  are  certainly  incorrect,  for  if  the  fish  became  a  total  loss, 
tlio  assurers  must  pay  for  them,  as  only  average  losses  arc  excepted  by  the  memorandum, 
except  on  certain  conditions.     And  this  case  of  Cocking  v.  Frascr  in  wrongly  decided. 

(a)   Park  Ins.  248.  {b)  3  B.  «&  P.  474. 


OF    AVERAGE    LOSSES.  261 

doubt  in  my  mind,  and  it  is  certainly  a  very  strong  caso.  But  the  authority  of 
that  case  is  much  shaken  by  tlie  observation  of  Lord  Kenyon  upon  it,  in  Bur- 
net V.  Kensington.  I  suspect  that  the  words  'of  no  vahie,'  appHed  to  the 
cargo  in  the  case  of  Cocking  v.  Fraser,  are  somewhat  too  large,  and  that  the 
fact  was,  not  that  the  cargo  was  in  such  a  situation  as  to  make  it  impossible  to 
preserve  it,  but  that  it  was  so  much  damaged  as  to  be  no  longer  valuable  to  the 
owners,  because  it  was  not  worth  carrying  to  the  port  of  destination.  Lord 
Kenyon,  speaking  of  Cocking  v.  Fraser,  says,  that  he  cannot  subscribe  to  the 
opinion  there  *given,  that  if  'the  commodity  specifically  remain,  p  ^,  .  -, 
the  underwriter  is  discharged.'     I  think  myself,  therefore,  at  liberty  L  J 

to  consider  the  case  of  Cocking  v.  Fraser,  as  something  less  strong  than  it 
appears  to  be.  The  question  then  is,  whether  the  loss,  which  has  happened, 
be  not  as  much  a  total  loss  as  if  the  waves  had  carried  the  cargo  overboard,  or, 
as  if  it  had  been  directly  prevented  from  arriving  at  the  port  of  destination,  by 
some  of  the  perils  insured  against.'*  I  never  have  understood  that  the  under- 
writers insure  fish  against  no  perils,  which  do  not  end  in  a  total  annihilation  of 
the  commodity.  When  tlie  loss  arises  from  capture,  the  commodity  remains 
in  existence  in  the  hands  of  the  enemy  ',  and  yet  this  loss  is  as  much  within  the 
policy  as  a  loss  arising  from  the  wreck  of  the  ship.  I  must  now  take  it,  that 
the  circumstances,  under  which  the  cargo  in  this  case  stood,  were  such  that 
sea-damage  had  so  operated  as  to  make  it  impossible  for  the  captain  to  keep  it 
any  longer  on  board.  Whether  the  cause  of  the  loss  were  direct  or  indirect,  it 
produced  a  total  annihilation  of  the  commodity."  The  other  Judges  concurred, 
and  there  was  judgment  for  the  plaintiff's. 

In  the  case  of  AfJlndreivs  v.  Fanghan,  (a)  which  was  an  insurance  on  fruit 
from  Lisbon  to  London,  it  appeared  that  the  ship  was  captured,  and  recaptured, 
brought  into  Portsmouth,  and  afterwards  arrived  at  London:  but  the  cargo,  by 
the  capture,  recapture,  and  consequent  length  of  the  voyage,  had  sustained  a 
damage  of  80/.  per  cent.  The  assured,  however,  never  heard  of  the  capture 
till  the  ship  was  safe  at  Portsmouth,  and  then  he  offered  to  abandon. 

Lord  Kenyon. — "As  there  has  been  no  stranding,  there  cannot  be  a  recovery 
for  an  average  loss.  The  question  then  is,  whether  the  assured  can  recover  for 
a  total  loss?  Had  the  plaintiff  heard  of  the  capture  only,  he  might  have  aban- 
doned :  but  he  hears  nothing  of  the  accident  till  the  ship  is  in  safety.  The 
cargo  arrives  at  the  port  of  destination ;  and  though  it  is  good  for  very  little, 
yet  it  has  invariably  been  held  that  the  voyage  must  either  be  lost,  or  the  cargo, 
if  it  *be  one  of  those  mentioned  in  the  memorandum,  must  be  r-  ^a-io  1 
wholly  and  actually  destroyed  to  entide  the  assured  to  recover."  ■-  -^ 

The  plaintiff  was  nonsuited. 

In  the  case  of  Mason  v.  Skurray,  (6)  which  was  an  action  brought  on  a 
policy  of  insurance  on  goods,  on  board  the  Happy  Recovery,  at  and  from  Lon- 
don to  St.  Augustine,  to  recover  for  a  total  loss.  The  cargo  was  peas,  which, 
in  a  former  case  on  the  same  policy,  were  held  to  fall  within  the  general  de- 
nomination of  corn,  in  the  memorandum  at  the  foot  of  the  policy.  The  peas 
arrived  at  the  place  of  destination ;  but  being  much  damaged,  the  produce  of 
them  was  less  by  about  three-fourths  than  the  freight,  which  on  account  of  the 
ship's  arrival  at  the  port  of  discharge,  became  due.  The  defence  set  up  by  the 
underwriter  was,  that  if  the  goods  mentioned  in  the  memorandum  arrive  at  the 
market,  though  a  loss  amounting  to  a  total  one  has  happened,  the  underwriters 
are  not  liable.  Four  or  five  witnesses  conversant  in  setUing  losses  upon  poli- 
cies being  called,  proved  that  the  usage  was,  in  such  cases,  to  hold  the  under- 
writers discharged. 

(rt)   Sit.  at  Gild,  after  Midi.  1793.      Park  Ins.  252. 
lb)  Sit.  at  Hil.  Term,  1780,  at  Guild.  Park  Ins.  253. 


262  OF    AVERAGE    LOSSES. 

Lord  Mansfield  told  the  jury — "This  was  a  question  of  consequence,  and 
it  turned  upon  the  general  import  of  the  exception :  the  witnesses  examined 
have  put  it  on  that  point ;  and  they  hold,  that  if  the  specific  thing  come  to  the 
port  of  delivery,  the  underwriter  cannot  be  called  on.  How  did  this  matter 
stand  before  the  year  1749?  When  the  policy  was  general,  and  operated  as  an 
indemnity,  there  was  little  difference  between  a  total  and  an  average  loss; 
which,  he  observed,  was  prior  to  the  clause  in  question.  But  the  cases  now 
stand  upon  the  memorandum,  which  is  in  very  general  words.  The  question 
is,  whether  the  usage  has  not  explained  the  generality  of  the  words .?  If  it 
has,  every  man  who  contracts  for  a  policy  under  usage,  does  it  as  if  the  point 
of  usage  were  inserted  in  his  contract  in  terms.  The  witnesses  examined  all 
swear  it  to  be  understood,  that  if  the  specific  thing  come  to  market,  the  memo- 
r  *Ai'i  1  randum  warrants  the  insurer  to  be  free  *from  any  demands  for  an 
L  J  average  loss."     The  jury  found  for  the  defendant. 

But  in  the  case  of  Davy  v.  Milford,  (a)  where  the  underwriters  are  exempt 
by  the  memorandum,  from  an  average  loss,  they  may  still  be  liable  for  the 
total  loss  of  part  of  the  goods  insured,  if  the  goods  be  of  a  description  to  admit 
of  a  divisibility,  and  packed  in  distinct  packages.  (6)  Thus  in  the  case  of  a 
cargo  of  flax  insured  by  a  valued  policy,  free  from  particular  average,  where 
the  ship  was  wrecked  before  she  arrived  at  her  port  of  destination,  and  the 
insured  did  not  abandon,  but  laboured  to  save  the  cargo,  and  in  fact  saved  a 
part,  (one-sixteenth)  though  much  damaged,  no  entire  packet  having  come  on 
shore,  and  that  which  did  come,  being  loose  and  wet,  and  requiring,  as  flax  is 
a  perishable  commodity,  to  be  sold  on  the  spot,  the  insured  was  held  to  be 
entitled  to  recover  as  for  a  total  loss  of  that  part,  which  was  in  fact  totally  lost, 
but  not  for  the  remainder,  which  was  saved  in  specie  though  deteriorated. 

But  in  the  case  of  Hedbury  v.  Pearson,  (c)  in  which  the  insurance  was 
declared  to  be  upon  "'hogsheads  of  sugar,"  when,  in  the  course  of  the  voyage 
the  ship  was  stranded,  and  bilged,  but  every  one  of  the  fifty-four  hogsheads 
which  the  aforesaid  ship  had  on  board,  was  saved,  and  in  every  hogshead  there 
were  some  loaves  of  sugar,  although  by  far  the  greater  part  had  been  washed 
out;  the  jury  having  stated  their  opinion  that  the  loss  was  an  average  one,  and 
found  accordingly ;  the  Court  held  that  they  were  right  in  so  doing.  They 
distinguished  this  case  from  the  case  of  the  flax,  for  there  no  entire  package 
came  to  shore ;  here  each  hogshead  had  some  sugar  in  it  saved :  if  any  of  the 
r  *474-  ~1  h'^s^l^'^^^s  h3,d  *been  entirely  lost,  there  would  have  been  a  total 
L  J  loss  of  that  part,  which  the  insurer  would  have  been  liable. 

The  import  of  the  general  memorandum  is  in  fact  usually  modified  by  an 
express  stipulation  to  pay  "average  on  each  species  of  produce,  or  package  of 
manufactured  goods,  or  on  each  ten,  fifteen,  or  twenty  hogsheads  of  sugar," 
&c.  (as  the  agreement  may  be)  the  effect  of  which  is  to  give  the  insured  a 
right  to  claim  average  separately  on  each  species,  if  it  amounted  to  three  or  five 
per  cent.,  although  there  may  not  have  been  a  three  or  five  per  cent,  loss  upon 
the  whole.  («) 

But  the  effect  of  this  stipulation  is  not  to  prevent  the  assured  from  estimating 
the  average  on  the  whole  cargo,  if  the  loss  altogether  amounts  to  a  three  or  five 
per  cent,  average  on  the  whole,  but  it  is  intended  to  bestow  on  him  the  further 


(a)   15  East,  .559. 

(6)  In  Lewis  v.  Riickcr,  2  Burr.  1170,  Lord  Mansfield  says,  «« If  part  of  the  cargo 
capable  of  a  several  and  distinct  valuation  at  the  outset  be  totally  lost,  as  if  there  be  one  hun- 
dred hogsheads  of  sugar,  and  ten  happen  to  be  lost,  the  insurer  must  pay  the  prime  cost 
of  those  ten  hogsheads,  without  any  regard  to  tlic  price  for  which  the  other  ninety  may  be 
sold." 

(c)  7  Taunt.  154.  (a)  See  Stevens  on  Aver.,  p.  184. 


OF    AVERAGE    LOSSES.  263 

benefit  of  enahlincr  him  to  claim  one  or  several  losses  of  three  or  five  per  cent. 
on  one  or  several  packages,  which  he  could  not  have  done  without  such  an 
express  stipulation. 

Thus  in  the  case  of  Hn2;edorn  v.  JfliUmore,  {a)  where  a  policy  was  efiected 
upon  some  packages  of  linen  (average  being  payable  separately  on  each)  and  a 
loss  having  taken  place  amounting  to  twenty-two  per  cent,  upon  the  whole 
cargo,  most  of  the  packages  having  been  injured,  but  many  of  the  pieces  in 
each  particular  package  remained  sound,  it  was  contended,  on  behalf  of  the 
underwriter,  that  although  by  the  general  memorandum  he  would  have  been 
bound  to  pay  an  average  loss  sustained  by  the  linen  in  a  mass,  if  the  average 
exceeded  three  per  cent.,  yet  that,  the  special  clause  being  inserted,  his  claim 
was  limited  to  a  calculation  upon  each  package  separately,  and  that  he  was 
only  entided  to  claim  for  a  loss  upon  those  packages  which  were  actually 
damaged.  But  Lord  EUenhorouc^h  said,  "that  this  clause  was  introduced  for 
the  benefit  of  the  assured,  and  did  not,  as  had  been  argued,  oust  the  })laintiff's 
claim  to  general  average."  His  Lordship  afterwards  stated  his  opinion  that, 
*though  one  or  more  entire  packages  were  uninjured,  they  were  p  ^^^^  -, 
still  to  be  included  in  the  average.  ^  -' 

And  in  the  case  of  Blackelt  v.  Royal  Exchans^e  Assurance  Company^  (b) 
it  has  likewise  been  decided  that  upon  the  construction  of  the  memorandum 
"free  from  average,  under  three  per  cent,  unless  general,"  if  several  average 
losses  less  than  three  per  cent,  individually  take  place,  the  aggregate,  how- 
ever, of  which,  amount  to  the  three  per  cent,  or  more,  the  underwriter  is  liable. 
And  Lord  Lyndhurst,  Mho  delivered  the  judgment  of  the  Court,  said,  "that 
the  memorandum  was  in  the  nature  of  an  exception,  and  was  to  be  taken  most 
strongly  against  the  party  for  whose  benefit  it  was  introduced." 

But  in  the  very  recent  case  o(  Hills  and  another  v.  The  London  Assurance 
Company,  (c)  where  an  insurance  was  effected  upon  a  cargo  of  wheat,  shipped 
in  bulk,  and  valued  at  1,600/.,  warranted  free  from  average,  except  general, 
or  the  ship  be  stranded  on  the  voyage  ;  the  ship  met  with  tempestuous  weather, 
and  made  considerable  water;  and  in  pumping  it  out,  wheat  to  the  value  of 
about  75/.  was  pumped  out  with  the  water,  and  lost.  It  was  held  that  the 
plaintiffs  could  not  recover  as  for  a  total  loss  of  the  part  so  lost ;  and  Lord 
Abinger  said,  "that  the  law  had  been  settled  in  many  cases  before,  that  where 
the  insurance  is  upon  each  packet  separately,  it  is  to  be  treated  as  a  total  loss 
upon  each  package  lost;  but  when  it  is  an  insurance  upon  the  bulk,  unless  the 
loss  exceeds  a  certain  value,  there  is  no  average  loss,  and  there  cannot  in  such 
a  case  be  a  total  loss  of  a  portion  only  of  the  cargo." 

In  the  case  of  Nesbitt  v.  Lushinglon,  (d)  which  was  an  action  on  a  policy 
on  wheat  and  coals,  the  declaration  stated  the  loss  to  be  by  detention.  It 
appeared  in  evidence  that  the  ship  was  forced  by  stress  of  weather  into  Ely 
harbour  in  Ireland,  and  there  happening  to  be  a  great  scarcity  of  corn  there  at 
that  time,  the  people  came  on  board  the  ship  *in  a  tumultuous  r-  ^ --,g  -, 
manner,  took  the  government  of  her  from  the  captain  and  crew,  ^  -' 

and  weighed  her  anchor,  by  which  she  drove  upon  a  reef  of  rocks,  where  she 
was  stranded,  and  they  would  not  leave  her  till  they  had  compelled  the  captain 
to  sell  all  the  corn  (except  about  ten  tons)  at  a  certain  rate.  The  ten  tons  were 
lost  in  consequence  of  the  stranding,  by  which  it  was  damaged,  and  obliged  to 
be  thrown  overboard.  The  ship  afterwards  arrived,  with  the  rest  of  the  cargo, 
at  the  place  of  destination.  A  verdict  was  found  as  for  a  total  loss.  A  motion 
was  made  for  a  new  trial. 


(a)   1  Stark.  157.  (A)  2  Cr.  &  J.  244 ;  2  Tyr.  266. 

(c)   5  M.  &  W.  569.  (c/)  4  T.  R.  783. 


264  OF    AVERAGE    LOSSES. 

Lord  Kenyon  said — "This  being  a  policy  upon  corn,  the  memorandum 
states  that  the  underwriter  will  not  be  liable  for  any  average,  unless  general,  or 
the  ship  be  stranded.  And  I  am  of  opinion  that  this  is  not  a  general  average, 
because  the  whole  adventure  was  never  in  jeopardy.  There  is  no  pretence 
to  say,  that  the  persons  who  took  the  corn  intended  any  injury  to  the  ship,  or 
any  other  part  of  the  cargo,  but  the  corn,  which  they  wanted  in  order  to  prevent 
their  suffering  in  a  time  of  scarcity.  Therefore  the  plaintiffs  could  never  have 
called  on  the  rest  of  the  owners  to  contribute  their  proportion,  as  upon  a  general 
average.  On  the  meaning  of  the  memorandum  I  have  no  doubt.  The  articles 
there  enumerated  are  of  a  perishable  nature  :  as  it  might  be  difficult  to  ascertain 
whether  their  being  damaged  arose  from  any  accident,  or  from  the  nature  of 
the  articles  themselves,  this  memorandum  is  inserted  in  all  policies,  to  prevent 
disputes :  and  by  it  the  underwriters  expressly  provide  they  will  not  pay  any 
average  uViless  general,  or  the  ship  be  stranded.  When  a  ship  is  stranded, 
then  the  underwriters  agree  to  ascribe  the  loss  to  the  stranding,  as  being  the 
most  probable  occasion  of  the  damage,  though  that  fact  cannot  always  be  ascer- 
tained. Therefore  here  all  the  damage  done  to  the  cargo  thrown  overboard 
may  be  ascribed  to  the  stranding :  but  the  objection  is,  that  the  declaration 
imputes  the  loss  to  another  cause." 

p  *477  -1  *Mr.  Justice  i?u//o-. — "With  respect  to  the  objection,  that  this 
L  J  does  not  fall  within  the  reason  of  the  memorandum,  there  are  only 

two  instances,  in  which  the  owner  may  recover  an  average  loss  on  the  articles 
there  enumerated  :  either  where  the  average  is  general,  or  where  the  loss  arises 
from  the  stranding  of  the  vessel.  Now  this  cannot  be  said  to  be  a  general 
average,  for  the  reasons  already  given.  And  as  to  the  other  instance  of  strand- 
ing, the  plaintiffs  are  entitled  to  recover  for  any  loss  occasioned  to  the  cargo  in 
consequence  of  the  stranding,  provided  it  be  a  direct  and  immediate  consequence 
of  stranding  :  (a)  but  they  cannot  recover  for  that  which  was  taken  bv  the  mob. 
for  that  was  not  the  consequence  of  the  stranding,  but  on  the  contrary,  the 
stranding  was  occasioned  by  the  mob  coming  on  board  for  the  corn.  The 
rioters  took  possession  of  the  ship  in  order  to  get  at  the  cargo  5  but  this  loss 
cannot  be  ascribed  to  the  stranding.  Suppose  tlie  mob  had  taken  out  one  hun- 
dred quarters  of  corn  before  the  ship  had  been  stranded,  and  had  used  no  threat 
to  destroy  the  whole  if  it  were  not  delivered  to  them,  it  is  clear  that  the  under- 
writers would  not  be  liable.  Then  the  fact  of  their  taking  the  corn  after  she 
was  stranded  is  as  much  unconnected  with  that  circumstance  as  if  it  had  been 
before.  But  the  loss  which  happened  to  that  part  of  the  cargo  which  was 
thrown  overboard,  being  ascribable  to  the  stranding  and  being  a  direct  and 
immediate  consequence  of  the  peril  insured  against,  might  have  been  recovered, 
had  there  been  any  count  in  the  declaration  applicable  to  a  loss  by  stranding." 
Still  it  remained  a  question,  which  has  been  much  agitated  in  fVestminster 
Hall,  whether  the  words  "unless  stranded"  were  to  operate  as  a  condition,  so 
as  to  allow  the  assured  to  recover  for  an  average  loss  of  the  commodity,  if  that 
event  happened,  though  it  could  be  shewn  demonstrably  that  no  part  of  the 
loss  had  arisen  immediately  from  the  act  of  stranding.  Lord  Kenyon,  in  a 
r  *478  1  ^'^^^  before  him  at  Nisi  Prius,  (i)  *upon  this  subject,  had  been  of 
L  -I  opinion,  that  as  the  general  mode  of  construing  deeds,  to  which 

there  are  exceptions,  was  to  let  the  exceptions  control  the  instrument,  as  far  as 
the  words  of  it  extend,  and  no  further;  and  then  upon  the  case  being  taken  out 
of  the  letter  of  the  exception,  the  deed  operates  in  its  full  force ;  so  the  strand- 
ing of  the  ship  put  lish  in  the  same  condition  as  any  other  commodity  not  men- 


(a)  See  Burnett  v.  Kensington,  pofif,  that  this  doctrine  is  now  exploded. 
{/))  IJovvring  V.  Ehnslic,  sittings  after  Trin.  1790.     Park  Ins.  262. 


OF    AVERAGE    LOSSES,  265 

tinned  in  fhc  mpmorandtim,  for  otlicrwiso  there  would  be  very  considerable 
difficulty  in  ascertaining  how  much  of  llie  loss  arose  by  the  perils  insured 
against,  and  how  much  by  the  perishable  nature  of  the  commodity,  which  was 
the  very  thing  the  memorandum  intended  to  prevent. 

This  point,  iiowever,  was  settled  in  the  cause  of  Burnett  v.  Kensington,  (a) 
which,  as  Mr.  J.  Park  says,  was  as  much  discussed  as  any  case  that  ever  arose 
at  Guildhall,  and  which,  after  three  trials  by  Jury,  and  two  special  arguments 
upon  the  case  reserved  at  the  last  of  those  trials,  was  at  last  unanimously  decided 
by  the  whole  Court,  in  favour  of  the  assured.  It  was  an  insurance  on  fruit, 
the  policy  containing  the  usual  memorandum,  and  the  declaration  stated  the 
loss  to  be,  that  the  vessel  by  the  perils  of  the  sea  was  stranded,  bulged,  and 
destroyed,  whereby  the  goods  were  lost.  The  case  stated  that  the  vessel,  in 
the  course  of  her  voyage,  struck  upon  a  sunken  rock,  on  which  she  did  not 
remain,  but  in  consequence  of  it,  several  of  her  planks  were  started,  and  the 
water  immediately  flowed  into  the  hold  and  over  the  cargo ;  that  on  the  same 
day  she  was  stranded  at  Scilly,  by  direction  of  the  pilot,  for  the  preservation 
of  ship  and  cargo.  While  she  continued  on  the  beach,  the  water  again  flowed 
in  over  the  cargo,  which  was  very  much  damaged,  and  a  small  part  was  left  at 
Scilly  as  whoHy  unfit  for  use.  The  ship  received  no  damage  in  consequence 
of  the  stranding.  The  damage  she  received  was  entirely  from  the  rock  on 
which  she  struck :  part  of  the  damage  the  cargo  received  was  occasioned  by 
the  water  flowing  into  the  ship,  previous  to  her  being  laid  *on  the  p  ^^^^  -, 
I)each,  and  part  was  occasioned  by  the  water  that  flowed  in  after-  L 
wards;  but  the  cause  of  die  water  flowing  in  arose  entirely  from  the  ship  strik- 
ing on  tlie  rock,  and  not  from  any  mischief  done  to  the  ship  by  the  stranding. 
After  full  argument,  and  consideration  of  all  the  cases. 

Lord  Kenyan  said — "The  words  of  this  policy  are  in  general  terms,  including 
all  cases;  tlien  comes  this  memorandum,  'corn,  fruit,  &c.,  unless  general,  or 
the  ship  be  stranded.'  This,  therefore,  lets  in  a  general  average  :  and  I  do  not 
know  how  to  construe  the  words  grammatically,  but  by  saying,  that  if  the  ship 
be  stranded,  then  it  destroys  the  exception,  and"  lets  in  the  general  words  of  the 
policy.  If  a  general  provision  be  made  in  any  deed  or  instrument,  and  it  is 
there  said  that  certain  things  shall  be  excepted,  unless  another  thing  happen 
which  gives  effect  to  the  general  operation  of  the  deed,  if  that  other  thing  do 
happen,  it  destroys  tlie  exception  altogether.  My  two  opinions  that  have  been 
referred  to,  the  one  in  the  Nisi  Prius  case,  {h)  and  the  other  in  Nesbitt  v.  Lush- 
ington,  have  no  weight  with  me  as  judicial  authorities ;  but  I  confess  I  have 
not  been  able  to  extricate  my  mind  from  the  reasoning  that  led  me  to  the  con- 
clusion of  those  cases.  Without  inquiring  into  the  reasons  for  introducing  this 
exception,  on  the  grammatical  construction  of  the  whole,  I  have  no  doubt." 
Ilis  Lordship  then  went  into  a  consideration  of  the  cases  of  Cai-itillon  v.  The 
London  Assurance  Company,  Wilson  v.  Smith,  and  Cocking  v.  Frascr;  and 
proceeded — "If  it  had  been  intended  that  the  underwriters  should  only  be 
answerable  for  the  damage  that  arises  in  consequence  of  the  stranding,  a  small 
variation  of  expression  would  have  removed  all  difliculty  ;  they  would  have 
said,  'unless  for  losses  arising  by  stranding.'  But  in  the  body  of  the  policy 
they  have  insured  against  all  losses  from  the  causes  there  enumerated,  which 
include  stranding ;  and  then  follows  this  memorandum,  the  evident  meaning  of 
which  is,  free  from  average,  unless  general,  or  unless  the  ship  *be  p  *^qq  n 
stranded ;  so  that  if  the  ship  be  stranded,  the  insurers  say  they  •- 
will  be  answerable  for  an  average  loss.  That  appears  to  me  to  be  the  true 
sense  and  the  grammatical  construction  of  the  policy ;  and  therefore  I  am  bound 


(a)  7T.  R.  210.  (6)  Bowring  v.  Elmslie,  supra. 


266  OF    AVERAGE    LOSSES. 

to  give  tlie  same  opinion  I  formerly  gave,  not  because  I  gave  that  opinion,  but 
because  I  am  convinced  by  the  reasoning  that  led  to  it." 

Ashurst^  Grose,  and  Laivrence,  Justices,  also  delivered  their  opinions ',  and 
judgment  was  given  for  the  plaintiff'. 

But  it  has  been  decided  that  this  condition  is  to  be  construed  strictly,  and  that 
the  stranding  of  a  lighter,  by  which  goods  were  taken  from  the  ship  to  the 
shore,  was  not  such  a  stranding  of  the  ship  as  to  bring  the  goods,  whilst  on 
board  the  lighter,  within  the  warranty  to  which  the  exception,  "unless  the 
ship  be  stranded,"  applied,  (o) 

In  the  recent  case  of  jRoiix  v.  Salvador,  {b)  the  Court  of  Common  Pleas 
held,  that,  although  the  general  principle  laid  down  in  Burnett  v.  Kensington, 
that  if  the  ship  be  stranded  the  insurer  is  liable  for  any  average  damage,  though 
quite  unconnected  with  the  stranding,  could  not  be  disputed,  yet  they  held  that 
the  stranding  must  take  place  at  some  period  between  the  limits  of  the  risk 
attaching  and  ceasing  upon  the  goods  the  subject  of  the  memorandum;  and 
that,  as  the  liability  of  the  underwriter  on  goods  commenced  with  the  putting 
of  them  on  board,  and  ceased  with  their  being  discharged  and  safely  landed,  or 
by  any  other  legal  termination  of  the  adventure,  that  the  clause  in  the  policy 
relating  to  the  stranding  of  the  ship  ought  to  be  construed  with  the  same  restric- 
tion; and  that  the  stranding,  which  was  made  the  condition  of  letting  in  an 
average  loss,  ought,  upon  the  ordinary  rules  of  construction,  to  mean,  a  strand- 
ing which  takes  place  after  the  adventure  had  commenced,  and  before  it  had 
terminated.  And  they  held  that  in  this  case,  where  the  stranding  took  place 
at  a  period  during  the  voyage  after  the  goods  had,  by  the  occurrence  of  acci- 
r  *4R1  "1  ^^'^^^1  circumstances,  been  *landed  and  disposed  of,  and  the  respec- 
L  -•  tive  rights  of  the  underwriter  and  assured  ascertained,  that  this  was 

not  such  a  happening  of  the  contingent  event  as  would  destroy  the  exception, 
and  let  in  the  general  words  of  the  policy.  And  the  Court  of  Error,  in  the 
same  case,  (c)  though  they  did  not  decide  upon  this  point,  nevertheless  inti- 
mated the  like  opinion. 

II.  When  the  quantity  of  damage  sustained  in  the  course  of  the  voyage  is 
known,  and  the  amount  which  each  underwriter  upon  the  policy  is  liable  to  pay 
is  settled,  it  is  usual  for  the  underwriter  to  endorse  on  the  policy,  "adjusted 
this  loss  at  so  much  per  cent.,"  or  some  words  to  the  same  effect.  This  is 
called  an  adjustment. 

1.  It  has  been  held  by  Lord  EUenboroiigh,  that  if  an  agent  had  subscribed 
the  policy,  and  had  authority  so  to  do,  he  has  also  authority  to  sign  the  adjust- 
ment, {(l) 

2.  It  has  been  determined  that,  after  an  adjustment  has  been  signed  by  the 
underwriter,  if  he  refuse  to  pay,  the  owner  has  no  occasion  to  go  into  the  proof 
of  his  loss,  or  any  of  the  circumstances  respecting  it.  This,  it  is  said,  has 
been  the  invariable  custom  upon  this  subject;  which  seems  perfecdy  just,  as 
the  underwriter  has  under  his  hand  expressly  admitted  tlial  the  plaintiff  has 
sustained  damage  to  a  certain  amount.  To  be  sure,  if  any  fraud  were  discov- 
ered in  obtaining  the  adjustment,  that  might  be  a  gi'ound  for  setting  it  aside; 
but,  supposing  the  transaction  fair,  as  we  nmst  always  do  till  proof  is  given  to 
the  contrary,  the  rule  of  not  suffering  the  adjustment  to  be  contradicted  is  fair 
and  equitable. 

In  the  case  of  Hogg  v.  Gouldney,  (e)  an  action  was  brought  by  the  plaintiff 
against  the  defendant  on  a  policy  of  insurance,  which  the  latter  underwrote  in 

(a)  Hotrman  v.  Marshall,  2  Scott,  564 ;  2  B.  N.  C.  383. 

(6)    1  Scott,  491  ;   1  B.  N.  C.  536.  (c)   4  Scott,  23;  3  B.  N,  C.  276. 

(</)  Richardson  v.  Anderson,  sit.  after  Mich.  1805,  1  Uanip.  43,  note. 

(e)  Bit.  after  Trin.  1745,  at  Guild.  Bcawes  Lex.  Mcr.  310. 


OF    AVERAGE    LOSSES.  267 

November,  1743,  on  tho  ship  George  and  I/cnry,  Captain  Jiower,  at  and  from 
Jamaica  to  London,  with  a  warranty  annexed  to  the  policy,  that  the  ship 
shoukl  sail  from  Jamaica  with  the  fleet  that  *came  out  under  con-  p  .  .„  -. 
voy  of  the  IauUoiu  Castle  manof-war.     The  ship  sailed  with  the  L  J 

fleet  under  that  convoy,  hut  was  damaged  so  much  as  to  oi)lige  her  to  bear  away 
for  Charlestown,  where  she  was  condemned  and  broken  up.  Tho  plaintifT 
demanded  his  insurance ;  and  all  the  underwriters,  being  satisfied  of  the  truth 
of  the  case,  paid  their  loss,  except  the  defendant,  who  went  so  far  as  to  settle 
it,  and,  according  to  the  custom  upon  these  occasions,  underwrote  the  policy  in 
these  words,  "-Adjusted  the  loss  on  this  policy  at  ninety-eight  pounds  per 
cent.,  wliich  I  do  agree  to  pay  one  month  after  date.  J^ondon,  5th  July,  1745, 
Henry  Goiddney." 

When  the  note  became  due,  he  insisted  on  fuller  proof,  particularly  of  the 
ship's  sailing  with  convoy,  and  her  condemnation ;  but  as  it  always  was  the 
custom,  after  adjustment  and  a  promise  to  pay,  never  to  require  any  further 
proof  but  to  pay  the  loss,  and  Lord  Chief  Justice  Lee  being  of  opinion  that  this 
was  to  be  considered  as  a  note  of  hand,  and  that  the  plaintiff  had  no  occasion 
to  enter  into  the  proof  of  the  loss,  the  jury  found  a  verdict  for  the  plaintiff. 
The  same  rule  was  pursued  in  the  following  year,  in  another  case,  before  Lord 
Chief  Justice  Lee,  between  Hewitt  and  Flexney.  [a) 

The  words  used  by  Lord  Chief  Justice  />ec  are  extremely  large  ;  and  perhaps 
the  true  rule  upon  the  subject  may  be  better  collected  from  the  two  following 
more  modem  cases : — 

Case  on  a  policy  of  insurance  on  ship  and  goods  from  LjOndnn  to  Shelborne, 
m  Nova  Scotia,  [b)  The  policy  had  been  adjusted  by  the  defendant  at  50/. 
per  cent.,  and  it  was  contended  that  he  was  now  bound  by  that  adjustment. 
On  the  other  hand,  it  was  argued,  that  the  adjustment  was  not  binding ;  and 
that,  if  it  were,  it  ought  to  have  been  declared  upon  specially. 

Lord  Kenyon  said  that  he  did  not  think  it  necessary  to  declare  on  the  adjust- 
ment specially  that  it  was  prima  facie  evidence  against  the  defendant ;  but,  if 
there  had  been  any  *misconception  of  the  law  or  fact  upon  which  ^  *4oq  "i 
it  had  been  made,  the  underwriter  was  not  absolutely  concluded  by  L  J 

it.  This  turned  out  to  be  the  case  j  and  there  was  a  verdict  for  the  defendant. 
So  in  a  still  later  case  of  De  Garron  v.  Galbraith,  (c)  the  plaintiff  went  to 
trial,  having  no  other  evidence  to  produce  but  the  adjustment :  and  the  wit- 
nesses who  proved  it  swore,  that  doubts  soon  after  they  had  signed  it  arose  in 
the  minds  of  the  underwriters,  and  they  refused  to  pay ;  upon  which  Lord 
Kenyon  said,  that  under  these  circumstances  the  plaintiff  must  go  into  other 
evidence,  which  not  being  prepared  to  do,  he  was  nonsuited.  In  the  following 
Term  a  motion  was  made  to  set  aside  the  nonsuit,  upon  the  ground  that  an 
adjustment  was  prima  facie  evidence  of  the  whole  case,  and  threw  tlie  onus 
probandi  upon  the  underwriter,  and  that  it  amounted  to  no  more  than  proof  of 
the  defendant's  subscription  to  the  policy. 

Lord  Kenyon. — "I  admit  the  adjustment  to  be  evidence  in  the  cause  to  a 
certain  extent ;  but  I  thought  at  the  trial,  and  still  think,  that  when  the  same 
witness  who  proved  the  signature  of  the  defendant  to  the  adjustment  said,  that 
doubts,  soon  after  the  adjustment  took  place,  arose  in  the  minds  of  the  under- 
writers as  to  the  honesty  of  the  transaction,  and  they  called  for  further  proof, 
the  plaintiff  should  have  produced  other  evidence ;  and  that  shutting  the  door 
against  inquiry  after  an  adjustment,  would  be  putting  a  stop  to  candour  and 
fair  dealing  amongst  the  underwriters."     The  rule  was  refused. 

(rt)  Beawes  Lex.  Merc.  308. 

(6)  Rogers  v.  Maylor,  sit.  after  Trin.  1790.     Park  Ins.  p.  267. 

(c)  Sit.  after 'J'rin.  1795.     Parkins.  267. 


268  OF    AVERAGE    LOSSES. 

Mr.  J.  Park  says  here:  (a) — "It  has  been  lamented  that  this  case  has  not 
been  reported  in  the  Term  Reports,  it  being  presumed  that  an  accurate  state- 
ment of  the  evidence  would  have  clearly  shown  that  the  decision  of  the  learned 
Judge  at  Nisi  Prius,  and  afterwards  of  the  Court  of  King's  Bench,  was  cor- 
r  *4S4.  "1  ^^^^^y  I'lgli^'j  that  justice  was  done;  and  that  *under  the  particular 
L  -J  circumstances  of  the  case  it  might  have  been  a  very  proper  excep- 

tion to  the  rule  as  laid  down  by  Lord  Chief  Justice  Lee.  And  then  the  learned 
author  goes  on  to  show  that,  in  his  opinion,  the  case  of  Be  Garron  v.  Gal- 
braith  is  not  reconcileable  with  Rogers  v.  Maylor :  nor  with  that  candour  and 
fairness  which  ought  to  preside  in  the  litigation  of  all  commercial  questions,  (b) 

"For  the  omission  in  tlie  Term  Reports  1  am  not  answerable ;  but,  as  I  was 
counsel  in  the  cause  of  De  Garron  v.  Galbruith.,  I  can  vouch  for  the  accuracy 
of  the  statement;  and,  being  a  cnse  decided  by  the  Court  on  motion,  I  confess 
it  seems  to  me  entitled  to  as  much  consideration  as  a  case  decided  by  a  single 
Judge,  however  eminent  that  Judge  may  have  been.  Indeed,  I  do  not  see  any 
great  difllculty  in  reconciling  the  doctrine  contained  in  the  latter  with  that  of 
Rogers  v.  Maylor  and  Christian  v.  Combe.  They  all  agree  that  the  effect  of 
the  adjustment  is  to  throw  the  onus  probandi  upon  the  underwriter;  and  if, 
immediately  after  signing,  doubts  arise  about  the  honesty  of  the  transaction, 
and  those  doubts  are  instantly  communicated,  the  assured  ought  not,  with  a 
knowledge  of  this,  and  that  the  same  witness  who  proves  the  adjustment  and 
can  also  prove  tlie  communication  of  the  doubts,  to  proceed  to  trial  upon  the 
adjustment  only,  as  he  did  in  De  Garron  v.  Galbraith;  for  then  he  has  had 
the  notice  which  the  learned  author  alluded  to  thinks  ought  to  be  given,  that 
the  fairness  of  the  transaction  would  be  disputed.  The  only  objection  I  ever 
made  to  the  case  of  Hogg  v.  Goultlney  is,  that  Lord  Chief  Justice  Lee  lays 
down  tlie  rule  too  generally,  being  stated  without  any  exception,  whereas  the 
rule  does  admit  of  exceptions.  But  nobody  ever  presimied  to  find  fault  with 
that  decision,  where  it  probably  was  not  necessary  to  state  the  exceptions. 
But  still  the  comparison  without  an  exception  might  mislead ;  for  a  promissory 
note,  the  signature  being  proved,  only  shifts  the  burden  of  proof  of  fraud  on 
r  *4S^  1  ^^^  defendant.  I,  therefore,  still  think  the  *rule  respecting  adjust- 
L  J  menls  is  to  be  better  collected  from  the  modern  cases.     And,  in 

addition  to  the  cases  heretofore  decided  upon  the  subject,  I  have  now  to  bring 
forward  the  opinion  of  Lord  Ellenboroiigh,  who  has,  as  I  conceive,  in  two 
very  modern  cases  confirmed  the  notion  entertained  by  Lord  Kenyon  and  the 
Court  of  King's  Bench  in  his  time.  In  Hibbert  v.  Champion,  (c)  the  ship 
Ganges  had  sailed  from  the  Downs^  under  convoy  of  the  Fury  sloop  of  war, 
on  the  12th  December.,  1805,  for  Portsmouth.,  and  before  her  arrival  there, 
was  captured  by  a  French  privateer.  The  defence  was,  that  a  letter  from  the 
captain,  dated  .5lh  December.,  stating  that  he  was  to  sail  with  the  Fun/,  though 
received  on  the  Gtii  December.,  had  not  been  communicated  to  the  underwriter 
before  effecting  the  policy,  which  was  not  done  till  the  12th,  the  broker  having 
said  only  that  the  ship  had  sailed  about  three  weeks.  To  this  it  was  said,  that 
the  defendant,  after  reading  the  letter  in  question,  together  with  several  others 
written  subsequently,  had  on  the  12th  March.,  1806,  adjusted  the  policy,  on 
which  adjustment  the  plaintiff  relied,  and  compared  it  to  the  case  of  an  actual 
payment.      But 

Lord  Ellenborough  said — "If  the  money  has  been  actually  paid,  it  cannot 
be  recovered  back,  without  proof  of  fraud ;  ((/)  but  a  promise  to  pay  will  not, 
in  general,  be  binding,  unless  founded  on  a  previous  liability.      What  is  an 


(a)    1  Park  Ins    268.  (6)  Marshall,  3rd  edit.  645. 

(c)   1  Camp.  13i.  (rf)  '^^'^  ^^^^3  v.  Lumby,  2  East,  469. 


OF    AVKRACiE    LOSSES.  269 

adjustment?  It  is  an  admission,  on  the  supposition  of  llie  truth  of  certain  facts 
stated. that  the  assured  are  entitled  to  recover  on  the  policy.  Perhaps,  if  pro- 
perly stamped,  it  mi«ilu  be  declared  on  as  a  promissory  instrument.  II«;re  it  is 
a  mere  admission,  and  there  was  no  consideration  for  the  promise  it  is  supposed 
to  prove.  An  underwriter  must  make  a  stronj^  case,  after  admittinjj  his  lia- 
bility:  but  until  he  has  paid  the  money,  he  is  at  lilicrty  to  avail  himself  of  any 
defence,  which  the  facts  ar  the  law  of  the  case  will  furnish."  It  is  quite  evi- 
dent, that  his  Lordship  here  considered  an  adjustment  as  shifting  the  burthen 
of  proof  from  the  assured  to  the  underwriter :  but  *by  no  means  r-  ^^„_  -, 
shutting  out  the  latter  from  any  ground  of  defence,  which  either  ^  -J 

the  law  or  the  facts  would  sui)ply.  In  the  particular  case  the  jury  thought  the 
letter  relied  upon,  would  have  made  no  difference ;  but  it  was  submitted  to 
their  consideration  by  Lord  Ellenborow^h:  and  the  plaintiff  had  a  verdict.  («) 

The  other  case  was  that  of  Shcppard  v.  Chewier,  {b)  where  the  })laintiff  in 
an  action  on  a  policy,  from  Liverpool  to  Provence,  with  or  without  letters  of 
marque,  had  ffiven  in  evidence  an  adjustment  on  the  policy  signed  by  the 
defendant,  and  proved  that,  previously  to  its  being  signed,  an  account  had  been 
posted  up  at  Lloi/cr.s  which  the  defendant  must  have  seen,  stating  that  the  ship 
on  her  way  out  had  chased  everything  that  she  saw,  and  had  at  last  been  cap- 
tured in  the  Gut  of  Gibraltar,  through  the  cowardice  and  mismanagement  of 
the  master.  The  defendant,  when  he  signed  the  adjustment,  said,  it  was  not 
likely  the  ship  should  have  been  lost  by  cowardice,  when  the  captain  was  killed 
in  the  eng;igement.  On  the  part  of  the  defendant  it  was  proved,  that  the  ship, 
from  the  time  of  her  sailing  from  Liverpool,  had  been  in  the  constant  habit  of 
cruiziuff  for  prizes :  and,  therefore,  it  was  said  to  be  a  deviation.  On  the  other 
side  it  was  contended,  that  as  no  fraud  was  practised  upon  the  defendant,  when 
he  signed  the  adjustment,  and  as  the  notice  had  informed  him  of  the  supposed 
deviation,  it  was  to  be  considered  as  conclusive  against  him.      But 

Lord  Ellenboroiigh  said,  the  adjustment  was  prima  facie,  evidence  against 
the  defendant :  but  it  certainly  did  not  bind  him.  unless  there  was  a  full  disclo- 
sure of  llie  circumstances  of  the  case:  unless  they  were  all  blazoned  to  him  as 
they  really  existed,  (c)  Therefore  if  ihe  jury  should  think  that  the  defendant, 
by  reading  the  notice  stuck  up  at  LJoi/d's;  had  his  attention  drawn  only  to  the 
manner  in  which  the  ship  was  captured,  and  was  not  roused  lo  tlie  previous 
deviation  with  *which  he  afterwards  became  acquainted,  his  lia-  ^  *407  -i 
bility  to  the  assured  would  be  discharged,  notwithstanding  the  ad-  •-  J 

justment  His  remark,  when  he  signed  the  adjustment,  seems  to  show,  that 
lie  had  then  only  considered  the  conduct  of  the  master  at  the  moment  of  the 
capture ;  and  the  expression  of  the  ship  having  chased  everything,  did  not  of 
necessity  imply  a  deviation,  since  from  carrying  a  letter  of  marque  she  might 
be  considered  as  at  liberty  to  chase,  so  that  she  continued  in  the  line  of  the 
voyage." 

An  adjustment  and  payment  shall  not  prevent  a  mistake  being  set  right,  if 
there  be  a  mistake  in  fact.  But  where  there  is  a  full  knowledge  of  the  circum- 
stances, and  the  assured  claim  and  receive  a  premium  due  upon  the  arrival  of  a 
ship  (which  he  has  no  right  to  do,  till  the  risk  is  ended,  and  the  settlement  of 
the  whole  made)  he  cannot,  without  an  express  stipulation,  resort  a<rain  to  the 
underwriter  in  any  after  contingency  of  the  adventure.  And,  therefore,  it  has 
been  held  in  May  v.  Christie,  (d)  that  where  a  ship  having  been  seized  by  the 
Dutch  government  was  liberated,  upon  a  bond  being  given  by  the  agent  of  the 
assured,  and  upon  its  arrival  at  the  place  of  destination,  the  policy  was  adjusted, 

(a)  And  see  Gammon  v.  Beverly,  8  Taunt.  119. 

(b)  I  Camp.  274.  '  (c)   Rcyner  v.  Hall,  4  Taunt.  725. 
(d)  1  Holt,  67. 


270  OF    AVERAGE    LOSSES. 

and  the  assured  claimed  and  received  the  premium  due  upon  the  arrival  of  the 
ship,  but  the  vessel  and  cargo  were  afterwards  condemned ;  the  loss  occasioned 
by  the  bond  being  put  in  force  could  not  be  made  a  charge  upon  the  under- 
writer. 

The  indorsement  of  the  adjustment  on  the  policy  with  the  name  of  the  under- 
writer struck  out  does  not  prove  the  payment  of  the  sum  so  adjusted.  In  a  case 
at  Guildhall^  1829,  when  the  policy  was  produced,  it  appeared  that  an  adjust- 
ment of  thirty  per  cent.,  was  indorsed  upon  it,  with  the  name  of  the  defendant, 
run  tlirough  with  a  pen.  It  was  contended  for  the  defendant,  with  the  adjust- 
ment, and  the  name  run  through  was  proof  of  payment.  But  Lord  Tenterden 
said,  "that  the  evidence  was  not  sufficient  to  prove  the  payment;  that  he  had 
r  *4Sft  "1  often  known  it  to  happen  that  the  name  *was  then  struck  off  a 
L  J  policy,  on  the  faith  of  an  adjustment,  where  nothing  was  paid,  but 

an  arrangement  made  to  pay  at  a  future  time."  Other  evidence  was  then  given 
of  the  payment,  and  the  defendant  had  a  verdict.  («) 

3.  One  rule  relative  to  adjustments  remains  still  to  be  mentioned,  which  is, 
that  if  an  insurer  pay  money  for  a  total  loss,  and  in  fact  it  be  so  at  the  time  of 
adjustment;  if  it  afterwards  turn  out  to  be  only  an  average  loss,  he  shall  not 
recover  back  the  money  so  paid  to  the  insured.  But  substantial  justice  is  done 
by  putting  him  in  the  place  of  the  insured,  and  giving  him  all  the  advantages 
that  may  arise  from  the  salvage. 

This  rule  was  settled  by  the  King's  Bench  in  the  year  1766,  in  Da  Costa  v. 
Firth.  (I))  It  was  an  action  on  the  case  for  200Z.  upon  an  indebitatus  assump- 
sit, for  so  much  money  had  and  received  to  the  use  of  the  plaintiff.  Non 
assumpsit  was  pleaded,  and  issue  joined.  It  was  brought  by  the  insurer 
against  the  insured,  to  recover  back  what  he  had  paid  him.  At  the  trial  a  case 
was  reserved  for  the  opinion  of  the  Court.  The  facts  were ;  that  a  policy  had 
been  underwritten  by  the  plaintiff,  for  the  insurance  of  any  of  the  packet  boats 
that  should  sail  from  Lisbon  to  Falmoiith,  or  such  other  port  in  England  as 
his  Majesty  should  direct,  for  one  whole  year,  commencing  the  1st  of  October^ 
1763,  and  to  continue  to  the  1st  of  October,  1764,  inclusive,  upon  any  kinds 
of  goods  and  merchandises  whatsoever :  and  it  was  agi-eed  that  the  goods  and 
merchandises  should  be  valued  at  the  sum  insured  on  such  packet  boat,  without 
farther  proof  of  interest  than  the  policy,  and  to  make  no  return  of  premium 
for  want  of  interest,  being  on  bullion  or  goods. 

The  case  then  states,  that  the  defendant  had  an  interest  in  bullion  on  board 
the  Hanover  packet,  being  one  of  the  King's  packets  between  Lisbon  and  Fal- 
moiith;  that  on  the  2nd  of  December,  1763,  it  was  totally  lost  off  Fabnonth, 
r  *480  T  ''^  ^  voyage  between  Lisbon  and  Fahnouth;  and  the  loss  was 
•-  -^  adjusted  *in  writing  under  the  policy,  in  the  words  following: — 

*' Adjusted  a  loss  on  this  policy  at  100/.  per  cent.,  the  Hanover  packet,  Captain 
Sherborn,  being  totally  lost  at  Falmouth.  Should  any  salvage  hereafter  be 
recovered,  the  insured  promises  to  refund  to  the  insurer  whatever  he  may  so 
recover,  in  such  proportion  as  the  sum  insured  bears  to  the  whole  interest. 
London,  23rd  October,  1764,  for  Richard  Seward,  Michael  Firth." 

The  insurer  paid  the  whole  money  insured,  which  was  200/.  In  Jlpril, 
1765,  the  iron  trunk,  which  contained  all  the  bullion,  was  fished  up;  and 
thereby  all  the  bullion  was  recovered  without  prejudice,  and  delivered  to  the 
defendant.  The  defendant's  expense  of  salvage  amounted  to  63/.  8s.  2(/.,  and 
deducting  that  sum  for  salvage,  tlie  net  proportion  of  his  share  came  to  206/. 
11«.  9(/.  The  plaintiff's  proportion  tiiereof,  in  respect  of  his  subscription, 
amounted  to  48/.  4s.,  which  was  paid  into  Court. 

The  question  was,  whether  the  plaintiff  was  entitled  to  recover.'* 

(«/)  Adams  v.  Sanders,  M.  &  M.  373.  (b)  4  Burr.  1966.  . 


OF    AVERAGE    LOSSES.  271 

The  Court  held,  that  this  was  a  policy  of  a  peculiar  sort;  and  that  it  was 
good  within  the  exception  of  the  19  Geo.  2,  c.  37,  which  says,  that  certain 
policies  of  a  partitMilar  form  shall  be  void,  except  on  effects  from  any  port  in 
Europe  or  Auicrua,  m  tlie  possession  of  tlie  crowns  of  Spain  or  Portugal. 
This  is  a  mixed  policy:  partly  a  valued  policy,  partly  an  open  one:  it  is  a 
valued  policy,  and  fairly  so,  without  fraud  or  misrepresentation.  Therefore 
the  loss  havinjr  happened,  the  insured  is  entitled  to  recover  as  for  a  total  loss. 
The  insurer  agreed  to  the  value,  and  camiot  he  allowed  to  dispute  it.  The 
insured  has  received  the  money  for  a  total  loss ;  and  there  is  no  want  of  con- 
science in  retaininf^  it.  The  cases  cited  at  the  Bar  only  tend  to  show,  that 
where  it  appears,  before  adjustment  to  be  but  an  avcraj^e  loss,  the  underwriter 
shall  pay  no  more  than  the  real  damage;  the  reason  of  which  decision  is,  that 
the  insured  must  show  the  whole  case  as  it  then  stood.  But  in  the  present  case, 
there  was  a  total  loss  at  the  time  of  the  adjustment.  The  adjustment  in  this 
case  *makes  an  end  of  the  question.  Here  is  a  solemn  abandon-  p  ^ian  n 
raent,  and  a  solemn  agreement,  "that  the  insurers  shall  be  content  L  J 

with  salvage,  in  such  proportion  as  the  sum  insured  bears  to  the  w^hole  interest." 
There  was  a  total  loss  at  the  time  of  the  adjustment  (which  is  the  same  as  if  the 
damages  had  then  been  recovered  in  an  action.)  Here  is  no  sort  of  fraud,  nor 
anything  that  is  against  any  law :  and  to  refund  more  than  in  that  proportion 
would  be  contrary  to  the  underwriter's  own  agreement.  Therefore  the  net 
proportion  only,  in  respect  to  the  plaintiff's  subscription  after  deduction  of  sal- 
vage, ought  to  be  returned,  and  that  is  paid  into  Court.  The  postea  was 
ordered  to  be  delivered  to  the  defendant. 

But  where  a  compromise  has  been  entered  into  by  the  underwriters,  they 
cannot,  at  a  future  period,  make  a  claim  for  restitution.  And,  therefore,  in  the 
case  of  Blaawpot  v.  JDa  Costa,  (a)  it  was  held,  that  where  satisfaction  had 
been  made  under  a  commission  for  distribution  of  prizes  to  the  assured,  such 
of  the  underwriters  as  had  paid  were  entitled  to  restitution,  but  that  the  Royal 
Exchange  Compariy,  with  whom  the  ship  had  been  insured  for  1,500/..  and 
who  had  compounded  for  their  loss  and  renounced  salvage,  were  not  entitled. 

And  in  a  very  recent  case  of  Brooks  v.  M'Bonnelf,  (6)  in  the  equity  side  of 
the  Court  of  Exchequer,  where  an  insurance  was  effected  on  goods  on  board 
a  ship  consigned  to  Buenos  Jiyres,  and  the  ship,  with  the  cargo,  was  captured 
by  the  Brazilian  government,  and  condemned  for  an  attempted  breach  of 
blockade :  and  a  notice  was  given  of  the  capture  by  the  assured  to  the  under- 
writers, and  an  offer  made  to  abandon ;  but  the  underwriters  declined  the  offer 
to  abandon,  and  after  some  negotiations,  it  was  arranged,  that  by  payment  by 
the  underwriters  of  35/.  per  cent,  on  the  sum  insured,  the  policy  should  be 
delivered  up  to  be  cancelled :  and  some  years  afterwards,  in  pursuance  of  a 
convention,  between  Gre«;  i^n7«m  and  the  ^rr/ziV/on  government,  r-  ^.f.,  -, 
*the  goods  were  ordered  by  the  latter  government  to  be  restored  to  L  J 

the  owners,  and  compensation  made :  and  a  claim  was  made  by  the  underwri- 
ters to  the  whole  or  part  of  the  sum  awarded  for  compensation,  it  was  held, 
that  the  underwriters  having  declined  the  offer  to  abandon,  the  payment  of  the 
35/.  per  cent,  was  a  compromise  of  their  liability  under  the  policy,  and  that 
they  were  not  entitled  to  any  portion  of  the  sum  awarded  for  compensation. 


(a)  1  Eden,  130. 

(i)   1  Young  &  Coll.  500;  and  see  Tunno  v.  Edwards,  13  East,  488. 


Vol.  Vn.— T 


272  GENERAL    AVERAGE. 

SECTION  XVI. 

GENERAL    AVERAGE. 

Having  in  the  preceding  section  considered  the  two  descriptions  of  losses 
which  happen  to  the  assured  by  the  perils  of  the  sea,  and  which  are  borne  by 
the  underwriters  according  to  the  contract  of  which  we  are  treating,  and  recol- 
lecting that  the  first  description  of  loss,  which  was  a  total  loss  of  the  thing 
insured,  either  absolute  in  the  first  instance,  and  without  any  interference  on 
the  part  of  the  assured,  or  a  constructive  total  loss  in  which  the  thing  insured 
remained  in  specie,  or  in  the  case  of  capture,  in  which,  after  a  ship  had  been 
taken,  the  assured  were  by  law  entitled  at  once  to  abandon  to  the  underwriter; 
and  the  second  description  which  we  considered,  were  what  are  properly  called 
average  losses,  (because  they  are  equally  distributed  among  the  different  under- 
writers, each  paying  his  proportion  of  his  subscription)  and  they  differ  essen- 
tially from  total  losses,  because  there  may  be  many  average  losses  in  the  voy- 
age, and  many  average  losses  as  well  as  one  total  loss ;  but  there  cannot  be 
more  than  one  total  loss,  for  when  that  occurs,  the  adventure  is  at  an  end. 

The  memorandum  which  has  just  been  the  suliject  of  our  inquiries,  is  inti- 
mately connected  with  the  second  kind  of  loss,  viz:  the  average  loss;  for  we 
r  *4q'>  1  ^^'^^^  J"^*  ^^^^^  *^'^^*  ^y  i^^  *terms  the  underwriter  exempts  himself 
L  "J  from  any  liability  to  average  loss  in  articles  of  a  certain  description, 

particularly  specified  in  the  memorandum  :  with  regard  to  others,  also  specified, 
he  exempts  himself,  unless  the  average  loss  amounts  to  three  or  five  per  cent., 
with  this  general  condition  overriding  the  memorandum,  "unless  the  average 
be  general,  or  unless  the  ship  be  stranded."  The  latter  part  of  this  condition 
has  been  treated  of  in  the  preceding  section  :  it  now  becomes  our  object  to 
inquire  what  a  "general  average"  is,  and  what  laws  and  rules,  founded  upon 
law,  and  the  practice,  custom,  and  usage  of  merchants,  for  enforcing  the  bene- 
fits and  advantages  for  which  it  was  in  the  earliest  times  founded,  and  its  prin- 
ciples regulated  and  established. 

The  late  Lord  Tenterden,  in  his  Treatise  on  Shipping,  which  is  so  justly 
celebrated,  thus  commences  his  chapter  upon  this  important  subject.  I  shall 
not  hesitate  a  moment  in  availing  myself  of  that  learned  writer  and  Judge's 
remarks  on  that  commencement,  on  the  term  "general  average."  He  says, 
"Having  thus  treated  of  the  respective  duties  of  the  owner  and  merchant,  I 
now  proceed  to  the  consideration  of  a  subject  \vhich  is  equally  a  duty  of  the 
one  and  the  other,  namely,  the  general  contribution  that  is  to  be  made  by  all 
parlies  toward  a  loss  sustained  by  some  for  the  benefit  of  all.  This  contribu- 
tion is  sometimes  called  by  the  name  of  '  general  average,'  to  distinguish  it  from 
special  or  particular  average,  a  very  incorrect  expression,  used  to  denote  every 
kind  of  partial  loss  or  damage  happening  either  to  the  ship  or  cargo  from  any 
cause  whatever;  (a)  and  sometimes  by  the  name  of  'gross  average,'  to  distin- 
guish it  from  customary  average,  mentioned  in  the  bill  of  lading,  which  latter 
species  is  sometimes  also  called  'petty  average.'  The  principle  of  this  general 
contribution  is  known  to  be  derived  from  the  ancient  law  of  RJiodes,  being 
r  *A.^'\  "1  ^'^'^P''^^  '"'^^  ^'^^  Digesl.  ofJu-s/inian,  *with  an  express  recognition 
L  '      J  of  its  true  origin.     The  wisdom  and  equity  of  the  rule   will  do 

honor  to  the  memory  of  the  state  from  whose  code  it  has  been  derived,  as  long 

(a)  If  tlic  learned  author  applies  the  term  "incorrect  expression"  to  its  use  in  marine 
insurance  treatises  or  actions  of  policies  of  insurance,  I  cannot  acquiesce  in  his  rcniaxk  ;  for, 
it  is  the  word  used  in  the  policy  where  the  word  partial  never  appears. 


GENERAL    AVERAGE.  273 

as  marilimo  commerce  shall  endure.  The  principle  of  the  rule  has  hecn  adopted 
by  all  commercial  nations,  but  there  is  no  principle  of  maritime  law  that  has 
been  followed  l)y  more  variations  in  practice.  The  modern  ordinances  of  the 
several  continental  states  of  Europe  diner  from  each  other  in  many  particulars 
relating  to  this  general  contribution,  and  the  French  ordinance  establishes  a 
different  mode  of  contribution  in  dilicrent  cases.  An  enumeration  of  these 
varieties  would  furnish  little  entertainment  or  instruction  to  an  Entrlish  reader; 
discordant  rules  rather  serve  to  perplex  the  choice  Uian  to  guide  the  judgment. 
The  determination  of  Engliah  Courts  of  Justice,  furnish  less  of  authority  on 
this  subject  than  on  any  other  branch  of  maritime  law,  there  being  few  reported 
cases  ol'  questions  either  between  the  parties  liabh;  to  contribution  in  the  first 
instance,  or  between  a  party  so  liable  and  an  assurer,  from  whom  indemnity 
has  been  sought.  The  work  of  il/t7gc??.v  contains  a  variety  of  cases  of  adjust- 
ment of  average  by  consuls  and  Courts  abroad,  and  by  merchants  at  home, 
detailed  with  the  tedious  forms  of  the  notarial  office,  but  accompanied  by  some 
very  judicious  remarks.  Much  useful  information  upon  this  subject  is  to  be 
found  in  Mr.  rark\^  Si/stem  of  iMarine  Insurances,  and  also  in  the  publica- 
tion by  Serjeant  Marshall,  on  the  same  subject."  I  shall  of  course  myself, 
in  detailing  the  law  on  this  subject,  have  occasion  to  follow  not  only  the  guides 
whi(;h  this  learned  author  pointed  out,  but  in  a  great  measure  to  derive  the  mat- 
ter which  it  is  my  business  to  give  as  fully  and  correctly  as  I  am  able,  from  the 
treatise  of  the  learned  author  himself. 

'I'he  first  case  which  appears  to  have  been  argued  in  our  Courts  of  Justice, 
on  the  subject  of  general  contribution,  is  the  case  of  JVilson  and  another  v. 
Smith,  [a)  tried  before  *Lord  Alansfield,  at  GiuldhaU,  on  15tli  p  ..  ^^  -. 
Februari/,  1T64  :  and  afterwards  argued  in  the  same  year,  B.  K.,  >-      "*  -^ 

4  (Jeo.  8,  'I'rinity  'I'erm.  And  I  may  add,  that  having  mentioned  the  guides 
on  this  subject,  we  may  expect  to  derive  the  greatest  assistance  from  that  learned 
Judge,  whose  woi'ds  in  many  instances,  1  have  had  the  advantage  of  copying 
into  this  Treatise,  on  the  principles  of  the  law  of  marine  insurance. 

It  was  an  action  on  a  j)olicy  of  insurance,  brougiit  for  tlie  recovery  of  56/. 
19s.  8//.  per  cent,,  being  the  damage  received  by  the  cargo  of  wheat  on  board 
the  Bosraivcn  insured  at  and  from  Lancaster  to  Rotterdam.  Tlie  policy  was 
in  the  ordinary  form.  And  the  assurers  were  to  be  free  from  average  under  3/. 
per  cent.,  unless  general,  or  the  ship  shall  be  stranded.  The  policy  was  thus 
underwritten: — "N.  13.  corn  and  fish  are  warranted  free  from  average,  uidess 
general,  or  the  ship  be  stranded.  Sugar,  tobacco,  flax,  hides,  and  skins,  are 
warranted  free  from  average  under  5/.  per  cent. ;  and  other  goods  free  from 
average  under  3/.  per  cent.,  unless  general,  or  the  ship  be  stranded."  On  her 
voyage  to  Rotterdam  the  vessel  met  with  a  violent  storm,  and  was  by  and 
through  the  force  of  the  winds  and  stormy  weather,  obliged  to  cut  awav  and 
leave  her  cable  and  anchor  for  the  safety  of  the  ship  and  cargo,  and  was  also 
greaUy  damaged,  and  ol)liged  to  run  to  die  first  port  [Liverpool)  to  refit,  and 
that  the  expense  of  refitting  amounted  to  38/.  15s.  per  cent.  'I'he  hatclics 
were  not  opened  at  LAverpool,  but  she  sailed  and  reached  Rotterdam  and  there 
landed  her  cargo.  'J'hat  upon  unloading  the  wheat,  it  appeared  that  it  had 
received  damage  from  the  storm  to  the  amount  of  56/.  \9s.  Hd.  pes  cent.  The 
single  question  was,  (upon  the  true  construction  and  meaning  of  the  words 
"free  from  average  unless  general,  or  the  ship  be  stranded,")  whether  the 
plaintiffs  can,  under  the  circumstances  of  th's  case,  recover  in  this  action  for 
the  damage  of  50/.  19s.  Sd.  per  cent,  (the  other  matter  not  being  disputed.) 
There  were  two  arguments  at  the  Bar,  dia  first  by  Dunning  for  the  plaintiffs, 

(a)  Keportcd  in  3  Burr.  p.  1550,  and  Black.  Rep.  p.  507. 


274  GENERAL    AVERAGE. 

and  Morton  for  the  underwriters.  They  quoted  no  common  law  cases  on 
r  *4qf^  1  either  side.  Mr.  Dunning^ s  '  arj^ument  tended  in  g-eneral  to  sliew 
L  J  that  these  words  amounted  to  a  condition,  which  condition  would 

render  it  free  from  average,  unless  in  two  events,  viz  : — a  general  average,  or 
a  stranding  of  the  ship :  hut  if  either  of  these  two  events  happen,  then  to  be 
liable  to  average. 

Mr.  Dunning  said,  "that  this  clause  now  in  question  was  first  introduced 
about  the  year  1749,  before  which  time,  he  said,  assurers  were  liable  to  every 
injury  that  happened  to  the  goods  insured.  This  clause  or  memorandum  was 
introduced  to  deliver  the  assurers  from  small  averages,  and  v/as  thought  to  have 
been  a  better  method  of  attaining  that  end,  than  adapting  the  premium  to  the 
nature  of  the  commodity,  as  it  might  happen  to  be  more  or  less  liable  to  perish 
or  suffer:  which  method  would  have  made  the  policy  too  complicated;  and 
■which  the  Dutch  had  first  tried,  and  afterwards  altered."  He  argued  that 
there  was  here  a  general  average,  which  consisted  in  a  part  being  destroyed 
for  the  sake  of  saving  the  whole.  Mr.  Morton  argued  that  the  meaning  and 
intention  of  the  policy,  that  the  assurers  should  not  be  answerable  for  any 
average  loss  or  damage  to  the  goods  insured.  A  general  average,  he  said,  was 
a  o-eneral  contribution  of  the  owners  of  tlie  goods  on  board  (where  part  is 
destroyed  to  preserve  the  whole)  in  proportion  to  their  concern.  If  another 
man's  goods  had  been  thrown  overboard  to  save  the  whole  cargo,  the  owners 
of  the  wheat  must  then  have  been  liable  to  general  average  in  j)roportion  to  the 
value  of  their  wheat.  If  the  ship  had  been  stranded,  the  assured  might  have 
abandoned.  Upon  a  general  average,  the  assurer  stands  in  the  place  of  the 
owner  of  the  goods :  and  upon  a  total  loss  is  entitled  to  what  may  be  saved. 
A  o-eneral  average  is  a  contribution  by  non-sufferers,  towards  the  loss  of  those 
who  have  suffered  for  the  preservation  of  the  whole.  But  there  is  nothing  in 
the  present  case  that  can  render  the  assurers  liable  to  an  average  of  this  wlieat 
insured  by  them. 

On  the  second  argument  Sir  Fletcher  Norton,  (A.-  G.)  for  the  plaintiffs,  and 
Serjeant  Burland  for  the  defendant. 

r  */<0R  n  '*^'''  Fletcher  Norton  mentioned  a  case  before  Lord  C.  .T.  Ryder, 
L  J  «1754,  between  Cantillon  and  The  London  JisHurance  Company, 

upon  an  insurance  on  corn,  with  such  a  clause  as  this ;  and  the  ship  being 
stranded,  the  plaintiff  recovered  an  average  loss  of  about  80/.  per  cent.  For 
Lord  C.  J.  Byder  and  a  special  jury  looked  upon  this  as  a  condition  :  and  that 
by  the  ship's  being  stranded,  the  assured  was  let  in  to  claim  his  whole  average 
loss.  After  which  determination,  that  company  (he  said)  had  altered  that  clause 
ill  their  insurances,  by  omitting  the  words  "or  the  ship  be  stranded."  [a) 

Serjeant  Burland  argued,  that  the  insurer  was  to  pay  no  average,  unless  in 
the  case  of  a  general  calamity.  It  is  a  general  discharge  from  all  average, 
except  in  the  two  cases  particularly  specified,  (which  two  cases  are  quite  dis- 
tinct and  unconnected.) 

The  general  contribution  and  particular  average  have  no  connection  with  each 
other. 

The  case  was  ordered  to  stand  over  for  the  opinion  of  the  Court :  and  on 
the  lOlh  July  1764,  Lord  Mansfield  delivered  that  opinion  to  this  effect: — 

"Policies  of  assurance,  according  to  their  present  form  are  very  irregular 
and  confused :  an  ambiguity  arises  in  them  from  their  using  words  in  different 
senses,  particularly  in  the  use  of  this  word  'average.'  [b)     It  is  used  to  signify 


(f/)  In  later  limes  they  have  since  restored  it. 

(bS  There  has  been  a  great  deal  of  nonsense  talked  in  the  books  about  the  confused  form 
of  the  policy,  and  the  difficulty  of  understanding  the  term  "average." 


GENERAL   AVERAGE.  275 

a  contribiUioii  to  a  general  (c)  loss :  and  it  is  also  used  to  signify  a  particular 
partial  loss. 

Sir  Ilcnri/  Spehnan,  in  his  Glossary,  under  the  word  "avergium,"  says, — 
"It  is  detrimcnturn  quod  veheiulis  mercibus  acfidit:  ut  (luxio  vini  frumenti 
corruptio,  nierchnn  in  tempestatibus  ejectio:  quibus  adduntur  vertura;  sumptus, 
et  nccessari;c  aliir  inipensa;.  De  averagiis  quo  nierc.ium  e  navil)us  projectarum, 
distribuendis,  veins  habetur  statutum,  non  impressum  eujus  exemplar  npud  me 
exlat."     {\jonl  Mansfield  ol)servod  that  he  had  never  met  with  that  statute.) 

'The  word  "unless,"  means  the  same  as  "except,"  and  is  not  p  ..^g^  -, 
to  be  construed  as  a  condition  in  the  sense  that  the  counsel  for  the  L  J 

plaintiffs  would  have  it. 

The  words  "free  from  average  unless  general,"  can  never  mean  to  leave  the 
assurers  liable  to  any  particular  average.  It  is  clear  that  the  plaintifis  ought 
not  to  recover,  and  the  judgment  ought  to  be  for  the  defendant." 

Ma  gens  (a)  says,  "that  whatever  the  mast(!r,  with  the  advice  of  his  officers 
and  sailors,  deliberately  resolves  to  do  for  the  preservation  of  the  whole,  in 
cutting  away  masts  or  cables,  or  in  throwing  goods  overboard  in  order  to  lighten 
the  ship,  which  is  meant  by  the  term  jettison,  is  in  all  places  permitted  to  be 
brought  into  a  general  or  gross  average ;  in  which  all  who  are  concerned  in  the 
ship,  freight,  and  cargo,  are  to  bear  an  equal,  or  proportional  part  of  the  loss 
which  was  so  incurred  for  the  common  welfare ;  and  it  must  be  made  good  by 
the  assurers  in  such  proportions  as  they  have  underwritten." 

In  the  works  of  wiiters  upon  commercial  aflairs,  we  very  often  meet  with 
the  word  "contribution,"  also  signifying  the  thing  thus  described;  and  in  a 
marine  sense  "average"  and  "contribution"  are  synonymous  terms.  (J?) 

In  treating  of  the  subject,  I  shall  follow  the  usual  division  of  it  into  three 
heads,  viz  : — 

I.  The  cases  in  which  a  general  contribution  is  to  be  made. 

II.  The  articles  which  are  to  contribute. 

III.  The  mode  in  which  the  contribution  is  to  be  made. 

I.  The  rule  of  the  Rhodian  laws  is  this: — "If  goods  are  thrown  overboard, 
in  order  to  lighten  a  ship,  the  loss  incurred  for  the  sake  of  all  shall  be  made 
o-ood  by  the  contribution  of  all.  (c)  And  it  was  resolved  in  Mouse's  case,  {d) 
in  an  action  brought  for  a  casket,  by  Mouse,  and  a  hundred  *and  ^  ^^gg  -, 
thirteen  pounds  taken  and  carried  away.  The  case  was  that  the  L 
ferryman  of  Gravesend  took  forty-seven  passengers  into  his  barge,  and  Mouse 
was  one  of  them ;  and  the  barge  being  on  the  water,  a  great  tempest  arose,  and 
a  strong  wind,  so  tliat  the  barge  and  all  the  passengers  were  in  danger  of  being 
drowned,  if  a  liogshead  of  wine  and  oilier  ponderous  things  had  not  been  thrown 
out  for  the  safeguard  of  the  lives  of  the  men.  It  was  resolved,  per  totam 
Curiam,  that,  in  case  of  necessity,  for  the  saving  of  the  lives  of  the  passen- 
o-ers,  it  was  lawful  for  the  defendant,  being  a  passenger,  to  cast  tlie  casket  of 
the  plaintilT  out  of  the  barge,  with  the  other  things  in  it;  for  '■^quod  quis  ob 
lutelani  corporis  sui  feceris  sine  id  fecisse  videtur,"  to  which  the  defendant 
pleads  all  this  special  matter;  and  the  plaintiff  replies,  "rfe  injuria  sua  pro- 
pria absque  tali  causa.'"  And  this  issue  was  tried :  and  it  was  proved  directly 
that,  if  the  things  had  not  been  cast  out  of  the  barge,  the  passengers  had  been 
drowned ;  and  that,  ^'■levandi  causa,'''  they  were  ejected,  some  by  one  passen- 


(c)  But  never  without  the  word  "general"  applied  to  it. 
(rt)   55.  {li)  Beawes. 

(c)  Dig.  2,  1.     Lege  Rhodia  cavctur,  ut  si  levandffi  navis  gratia  jactus  mercium  factm 
sit,  omnium  contribulione  sarciatur,  quod  pro  omnibus  datum  est. 
(ji)   12  Co.  63;  mentioned  also  in  Bird  v.  Astock,  2  Bulst.  280. 


276  GENERAL    AVERAGE. 

ger,  some  by  anotlier.  And  upon  this  the  plaintifF  was  nonsuited.  It  was  also 
resolved  that,  although  the  ferryman  surcharge  the  barge,  yet  for  safely  of  the 
lives  of  passengers  in  such  a  time  and  accident  of  necessity,  it  is  luwiiil  for  a 
passenger  to  cast  the  things  out  of  the  barge :  and  the  owners  shall  have  their 
remedy  upon  the  surcharge  of  the  ferryman,  for  the  fault  was  wilii  him  in  the 
surcharge.  But  if  no  surcharge  were,  but  the  danger  accrued  only  by  the  act 
of  God,  as  by  tempest,  no  default  Ijcing  in  the  ferryman,  every  one  ought  to 
bear  his  loss  for  the  safeguard  and  life  of  a  man;  for  '•'■interest  rel  publicx 
quod  homines  conserventur"  8  Ed.  4,  23,  &;c. ;  12  II.  8,  15;  28  H.  8; 
Dyer,  36,  So  if  a  tempest  arise  in  the  sea.  '■'■levundi  navis,''^  and  for  the 
salvation  of  the  lives  of  men  it  may  be  lawful  for  passengers  to  cast  over  the 
merchandises,  &c. 

Beawes  is  of  opinion  that,  in  order  to  make  the  act  of  throwing  the  goods 
overboard  le^al,  three  thinors  must  concur : — 

r  *4QQ  1  '^'^'  ^'^'^^'^  ^^  ^'^  condemned  to  destruction  be  in  ^consequence  of 
L  -"a  deliberate  and  voluntary  consultation  held  between  the  master 

and  men. 

2ndly,  That  the  ship  be  in  distress,  and  that  sacrificing  a  part  be  necessary 
in  order  to  preserve  the  rest. 

3rdly,  That  the  saving  of  the  ship  and  cargo  be  actually  owing  to  the  means 
used  with  that  sole  view. 

]Mr.  J.  Park  observes,  "that  the  second  point  of  these  three  propositions  is 
alone  necessary,"  [a)  and  therefore,  in  a  case  of  Buffer  v.  Tflfdman,  (b)  where 
goods  were  thrown  overboard  to  prevent  them  falling  into  the  hands  of  the 
enemy,  this,  though  jettison,  in  the  general  meaning  of  the  term,  was  held  not 
to  be  the  subject  of  a  general  average. 

Previous  deliberation,  if  there  be  time  to  deliberate,  and  a  due  choice  of  the 
heaviest  and  most  cumbersome  articles,  may  be  proof  of  the  necessity  and  pro- 
priety of  the  act.  But  they  are  not  the  only,  and  ought  not  to  be  considered 
as  the  essential  proofs.  So  decided  in  the  case  of  Birkfey  and  of  Iters  v.  P  res- 
grave,  (c)  Indeed,  in  such  a  case,  as  in  many  others,  too  close  a  compliance 
with  form  at  a  period  of  supposed  danger,  has  very  justly  excited  a  suspicion 
of  fraud,  (rf) 

It  appears,  also,  by  the  laws  of  irisbuy,  (e)  that  in  an  emergency  of  such 
a  nature  as  to  justify  lightening  the  ship,  it  was  necessary  to  consult,  first,  the 
owners  of  the  goods,  or  supercargo;  but,  if  they  would  not  consent,  the  mer- 
chandise might,  notwithstanding  their  refusal,  be  ejected,  if  it  appeared  neces- 
sary to  the  rest  of  the  people  on  board :  a  regulation  evidently  founded  in 
necessity,  to  prevent  the  sordid  individual  from  obstructing  a  measure  so  essen- 
tial to  the  general  safely,  (f) 

If  the  ship  ride  out  the  storm,  and  arrive  in  safety  at  the  port  of  destination, 
the  captain  must  make  regular  protests,  and  must  swear — in  which  oath  some 
r  *500  1  ^'  ^'^^  ^^^^"^  must  join — that  "the  goods  were  thrown  overboard  for 
L  J  no  other  cause  but  for  the  safety  of  the  ship,  (o) 

In  all  countries,  however,  and  in  all  cases,  it  is  justly  required  of  the  master 
that  he  draw  up  an  account  of  the  jettison,  and  verify  the  same  by  the  oath  of 
himself  or  some  of  his  crew,  as  soon  as  possible  after  his  arrival  at  any  port, 

(a)  Park  Ins.  279.  (b)  3  B.  &  A.  398. 

(c)  1  East,  220.  See  also  this  case  for  instances  of  what  comes  under  the  "head"  of 
"general  average." 

(d)  See  Abbott  on  Shiji.  Cth  edit.  427;   1   Eraerison,  torn.  1,   p.  605;  Consolato  del 
Mare,  c.  47,  48,  49, 

(e)  Art.  20.  (/)  Laws  of  Oleron,  art.  8. 
(a)  Beawes,  148 ;  Molloy,  b.  2,  c.  6,  s,  2, 


GENERAL    AVERAGR.  277 

that  there  may  be  no  opportunity  to  purloin  goods,  and  then  pretend  they  were 
cast  over  in  the  hour  of'  danijer.  (6) 

It  is  evident,  that  from  one  of  the  rules  above  stated,  that  there  can  be  no 
contribution  without  the  ejection  of  some  and  the  saving  of  others ;  but  it  is 
not  always  necessary  for  the  purposes  of  contribution  that  the  ship  should  arrive 
at  the  port  of  its  destination.  If  the  jettison  does  not  save  the  ship,  but  she 
perish  in  the  storm,  there  shall  be  no  contribution  of  such  goods  as  happen  to 
be  saved,  because  the  object  for  which  the  goods  were  thrown  over  was  not 
attained.  But  if  the  ship  be  once  preserved  by  such  means,  and  continuing 
her  course  should  afterwards  be  lost,  the  property  saved  from  the  second  acci- 
dent shall  contribute  to  the  loss  sustained  by  those  whose  goods  were  thrown 
out  upon  the  former  occasion,  (c) 

3Jagens^  in  one  place,  expresses  his  opinion  contrary  to  the  rules  contained 
in  the  above  ordinances ;  (J)  in  the  next  paragraph  he  admits  that  the  goods 
saved  ought  to  contribute,  (e) 

From  the  rule  established  by  the  Rhodians^  various  corollaries  have  been 
deduced.     Thus,  if  in  the  act  of  jettison,  or  in  order  to  accomplish  it,  or  in 
consequence  of  it,  other  goods  in  the  ship  are  broken,  damaged,  or  destroyed, 
the  value  of  these  must  be  included  in  the  general  contribution ;  and  damage 
done  to  the  ship,  by  cutting  holes  to  effect  jettison,  or  to  let  out  the  water.  (/) 
*So  if  to  avoid  an  impending  danger,  or  to  repair  the  damage  ^    ^^^^     -. 
occasioned  by  a  storm,  («)  the  ship  be  compelled  to  take  refuge  in  L 
a  port  to  which  it  was  not  destined,  and  into  which  it  cannot  enter  without 
taking  out  a  part  of  the  cargo,  and  the  part  taken  out  to  lighten  the  vessel  on 
this  occasion  happen  to  be  lost  in  the  barges  employed  to  convey  them  ashore ; 
this  loss  being  also  occasioned  by  the  removal  of  the  goods  for  the  general 
benefit,  must  be  repaid  by  a  general  contribution ;  but,  if  after  the  removal  of 
the  goods  for  such  a  purpose,  the  ship,  with  the  remaining  part  of  the  cargo, 
should  unfortunately  perish,  and  the  goods  in  the  barges  be  saved,  the  proprie- 
tors of  the  latter  shall  not  contribute  to  the  loss  of  the  others,  because  the  saving 
thereby  is  not  owing  to  that  loss.     So  if,  upon  the  expectation  of  an  hostile 
attack,  part  of  the  cargo  be  taken  out  and  sent  away  and  saved,  and  the  ship* 
with  the  remainder  of  the  cargo,  fall  into  the  hands  of  the  enemy,  the  part 
saved  shall  not  contribute  to  make  good  the  loss.  (6) 

Mr.  J.  Lawrence,  in  Birkley  v.  Presgrave,  (c)  says,  "All  loss  which  arises 
in  consequence  of  extraordinary  sacrifices  or  expenses  incurred  for  the  preser- 
vation of  the  ship  and  cargo,  come  within  the  description  of  general  average." 
The  damage  sustained  in  defending  a  ship  from  an  enemy  or  pirate,  such  as 
the  expense  of  curing  and  attending  upon  ofiicers  or  mariners  wounded,  does 
not  come  under  the  head  of  general  average,  although  some  writers  upon  this 
subject  maintain  the  contrary.  {(I)  But  Emerigon  (c)  and  others  maintain  the 
contrary ;  and  Mr.  J.  Park  says,  though  in  former  ediuons  of  his  work,  on 
the  authority  of  the  above-raeiitioned  writers,  he  had  stated  that  such  came 


(h)  Abbott  on  Ship.  428;  Stevens  on  Average,  29. 

(c)   Ord.    Louis  XIV.   tit.  Contribution,  art.  l.'j,  16;     Ord.  Hamfa.  2  Mag.  340;   Orel. 
Kotterdam,  2  Mag.  98. 

(rf)   1  Mag.  56.  (e)   1  Mag.  57.     See  Park  Ins.  281. 

(/)   Beavves,  148;  Stevens,  12. 

(a)  In  the  Dig.  2,  4,  and  the  Guidon,  c.  5,  art.  28.     See  Beawes,  165;  2  Valin,  167 
Abbott  on  Ship.  p.  428,  6th  edit. 

(i)   Sheppard  v.  Wright,  1   Show.  P.  C.   18. 

(c)  1  East,  p.  228. 

(d)  1  Mag.  64 ;  Valin,  liv.  3,  tit.  7 ;  Le  Guidon,  ch.  5,  art.  4. 

(e)  Ch.  12,  p.  41,  and  note  8. 


278  GENERAL    AVERAGE. 

under  the  head  of  general  average,  {/)  in  his  last  edition  he  says,  "that  it  is 
r  *Pin9  1  ^"i'^  clear  that  in  point  of  practice  these  expenses  have  *never 
L  J  been  placed  to  the  account  of  a  general  average:  and  since  the  time 

when  the  earlier  editions  were  published,  the  subject  underwent  considerable 
discussion  in  the  case  of  Taylor  v.  Curtis,  (a)  in  the  Court  of  Common  Pleas, 
where  all  the  authorities  quoted  on  either  side  were  referred  to  by  the  Judges ; 
and  after  time  taken  to  deliberate,  their  unanimous  judgment  was  pronounced 
by  Lord  Chief  Justice  Gibbs,  that  neither  the  expense  of  repairing  a  ship, 
injured  by  successfully  resisting  and  beating  off  a  privateer,  thus  reaching  her 
desired  port  in  safety,  nor  of  curing  the  wounds  of  the  sailors  sustained  in  the 
action,  nor  the  ammunition  expended  in  the  engagement,  was  the  subject  of 
general  average." 

Lord  Chief  Justice  Gibbs. — "The  doctrine  of  general  average  has  its  origin 
in  the  Rliodian  law  de  jaclu  '•  omnium  contributione  .furciaiur,  quod  pro 
omnibus  datum  est.''  The  different  states  oi Europe  have  made  different  regu- 
lations on  this  subject,  all  of  them  professing  to  follow  the  Rhodian  law,  but 
often  differing  from  each  other ;  and  the  foreign  jurists  have  made  very  different 
comments  on  that  law.  In  this  eountiy,  there  are  no  local  regulations  on  this 
subject;  we  should,  therefore,  as  in  all  doubtful  cases,  resort  to  the  judgments 
of  our  municipal  Courts,  if  this  point  had  ever  arisen  there.  There  is  nothing 
in  any  of  the  foreign  jurists  which  we  think  ought  to  govern  us  on  these  points, 
unless  they  had  been  supported  by  admitted  principles,  decided  authorities,  or 
general  usage.  None  of  the  decided  cases  apply  to  the  present  5  and  we  have 
unfortunately  been  so  long  engaged  in  war,  that  instances  of  this  kind  must 
frequently  have  occurred :  and  as  there  appears  to  be  no  case  where  a  demand 
r  *fin^  1  ^''^^  ^^^  present  has  been  made,  we  must  *  conclude  from  that  silence 
^  J  that  no  general  usage,  which  could  justify  such  a  demand,  has 

existed,  and,  therefore,  that  such  losses  cannot  be  taken  to  fall  within  the  prin- 
ciple of  general  average." 

And  it  was  decided  in  Harris  v.  Watson,  («)  by  Lord  Kenyon,  that  an 
extraordinary  allowance  promised  by  the  master  to  the  sailors,  in  considera- 
tion of  unusual  exertions  made  by  them  in  a  case  of  danger,  cannot  be  made 
the  subject  of  a  general  average,  since  the  mariners  are  bound,  without  any 
extra  wages,  to  use  all  exertions  that  are  necessary  in  a  time  of  danger. 

Another  charge  usually  claimed  as  general  average  was,  according  to  Beawes, 
the  sum  which  the  master  may  have  promised  to  pay  for  the  ransom  of  his  ship 
to  any  privateer  or  pirate,  when  taken,  [b)  But,  as  we  liave  seen  in  a  former 
part  of  this  work,  ransoms  are  now  prohibited  by  the  law  of  England,  (c) 

A  master  who  has  cut  his  mast,  parted  with  his  cable,  or  abandoned  any 
other  part  of  the  ship  and  cargo,  in  a  storm,  in  order  to  save  the  ship,  is  well 
entitled  to  this  compensation:  but  if  he  should  lose  them  by  the  storm,  the  loss 
falls  only  upon  the  ship  and  freight,  because  the  tempest  only  was  the  occasion 
of  this  loss,  without  the  deliberation  of  the  master  and  crew,  and  was  not  volun- 
tarily done  with  a  view  to  save  the  ship  and  lading,  {d) 

(/)   Park  Ins.  281. 

(a)  2  Marsli.  309.  The  expense  of  curing  the  wounded  is  made  the  subject  of  a  general 
average  by  the  Code  de  Commerce,  art.  440,  num.  6,  and  by  the  ordinances  of  the  Hanse 
Towns,  art.  35.  For  the  provisions  of  our  laws  for  the  encouragement  and  protection  of 
seamen,  see  Abb.  6th  edit.  p.  2,  c.  6.  (a)   Peake,  72. 

{b)   Beawes,  148.  (c)   Ante,  p.  300. 

{d)  Beawes,  148.  The  loss  of  a  cable  cut  away  by  the  master  in  a  storm  as  the  ship 
was  entering  Sunderland  harbour,  in  order  to  fasten  the  ship  to  the  pier  and  prevent  collision 
with  another  vessel,  was  held  the  subject  of  a  general  average.  Birkley  v.  Presgrave,  1 
East,  220. 


GENERAL    AVERAGE.  279 

But  in  the  case  of  Covington  v.  Roberts^  (e)  where  a  vessel  carrying  a  press 
of  sail,  in  order  to  avoid  a  privateer,  sustained  damage,  the  Court  held  that  it 
did  not  come  under  the  head  of  a  general  average.  It  was  only  a  common  sea 
risk,  and  must  be  borne  by  the  owner  of  the  ship,  who,  if  insured,  can  claim 
the  loss  from  the  underwriter. 

*So  where  a  ship  slips  or  cuts  away  her  cable  in  order  to  sail  ^  it^oA  "i 
with  convoy,  this  is  not  the  subject  of  general  average,  (a)  L  J 

And  if  a  cannon  ball  pass  through  a  bale  of  goods,  the  damage  done  is  not 
the  subject  of  a  general  average,  (b) 

We  have  seen  in  a  former  part  of  this  Treatise,  (c)  that  goods  lashed  on  deck 
do  not  come  under  the  general  term  of  goods  in  the  policy,  unless  it  is  the 
usual  mode  of  stowing  them,  for  that  the  risk  upon  them  is  of  course  greater 
than  on  other  goods,  and  therefore  in  the  case  of  a  loss,  tliough  these  goods 
must  contribute  in  common  with  the  others,  (rf)  they  themselves  (if  lost)  are  not 
the  subject  of  a  general  average. 

By  the  ordinance  of  Louis  XIV.,  art.  12,  s.  16,  it  provided  that  no  master 
shall  lay  any  goods  on  the  ship's  deck  without  the  consent  of  the  owners,  on 
pain  of  being  answerable  for  all  damages  j  and  by  art.  13,  s.  33,  that  no  con- 
tribution shall  be  demanded  for  payment  of  such  goods  as  shall  be  laden  on 
deck.  The  Code  de  Commerce^  art.  421  ;  Emerigon,  c.  12,  s.  42;  Consol. 
del  Mare,  c.  183;  and  Valin,  tit.  "Z)?<  Capitaine,^^  art.  12,  are  authorities  to 
the  same  effect.  But  Valin  says  that  this  rule  does  not  apply  to  boats  or  small 
vessels  going  from  port  to  port,  or  to  cases  in  which  that  mode  of  stowage  is 
sanctioned  by  custom. 

•  In  Be  Costa  v.  Edmunds,  (e)  we  have  seen  that  it  was  decided  that,  where 
the  jury  found  that  there  was  a  usage  to  carry  goods  of  that  description  on  deck, 
the  underwriters  were  held  liable  for  the  loss.  And  the  Court  of  Common 
Pleas,  in  a  recent  case  of  Gould  v.  Oliver,  (/)  which  was  an  action  brought 
against  a  shipowner  to  recover  a  contribution  in  respect  of  a  cargo  of  timber, 
laden  on  deck,  and  where  it  was  proved  that  it  was  the  usage  of  the  trade  so 
to  stow  it,  held,  tliat  the  same  rule  was  to  be  adopted  in  the  case  between  the 
shipowner  and  the  owner  of  the  cargo,  as  between  *the  owner  of  p  ^._„-  -, 
the  cargo  and  the  underwriter  in  Be  Costa  v.  Edmunds,  and  that  L  J 

as  the  stowage  on  deck  was  sanctioned  by  usage,  the  loss  was  properly  the 
subject  of  general  average. 

This  subject  was  most  elaborately  argued  and  discussed  at  the  Bar  in  the 
Court  of  Queen's  Bench,  and  an  important  judgment  of  that  Court  delivered  by 
Lord  Benman,  C.  J.,  on  .dpril  28th,  Easter  Term,  5  Vict.  1842,  in  the  case 
of  Milward  and  others  v.  Hibbert  and  another,  (a) 

The  first  count  of  the  declaration  stated,  that  heretofore,  to  wit,  20th  Novem- 
ber, 1837,  by  deed  poll,  or  policy  of  assurance,  there  made  and  sealed,  &c. 
The  declaration  then  set  out  the  policy,  which  recited,  that  the  plaintiffs  had 
represented  to  defendants,  directors  of,  and  acting  for.  The  Indemnity  and 
Mutual  Marine  .Assurance  Company,  that  they  were  interested  in,  or  author- 
ized as  owners  or  agents  to  make  the  assurance,  and  had  covenanted,  &c. ,  to 
pay  the  premium  mentioned:  and  it  was  witnessed  that  in  consideration.  &c., 
defendants  covenanted  and  agreed  with  the  plaintiff's,  that  the  capital  stock  and 
funds  of  the  Company  should  be  subject,  and  liable,  and  be  applied  to  pay  and 

(e)  2  N.  R.  378.  (a)  Stevens  on  Average,  p.    16. 

(6)  Le  Guid.  c.  5,  art.  4;  1  Emcrigon,  637,  c.  12. 

(c)   Page  19.  (d)  Stevens,  14. 

(e)  4  Camp.  142. 

(/)  5  Scott,  445;  4  B.  N.  C.  134;  ante,  p.  20. 

(a)  4  Q.  B.  120. 


280  GENERAL    AVERAGE. 

make  good  all  such  losses  and  damages  thereinafter  expressed,  as  miglit  hap- 
pen to  the  subject-matter  of  the  said  policy,  and  might  attach  to  the  said  policy, 
in  respect  of  the  sum  of  3.000/.,  thereby  assuretl.  Which  assurance  was 
declared  to  be  upon  hull  and  stores,  valued  at  10,000/.,  machinery  valued  at 
10,000/.,  in  all  20.000/.  average,  payable  at  such  valuation,  of  the  shij)  or 
vessel  called  The  KUkemiy  Steamer,  whereof,  <tc.,  was  then  master,  lost  or 
not  lost,  "at  and  from"  the  28th  day  o{  November,  1837,  at  noon,  in  port  and 
at  sea,  at  all  times,  on  all  occasions  and  services,  until  the  28th  day  of  Novem- 
ber, in  the  year  of  our  Lord.  1838,  at  noon,  with  liberty  to  tow  and  be  towed; 
that  the  assurance  aforesaid,  should  commence  upon  the  said  ship  "at  and  from" 
as  aforesaid,  and  until  she  had  moored  at  anchor,  &c.,  and  tliat  it  should  be 
r  *Pinr  1  l'*^^^^il  for  the  said  ship  or  vessel  to  proceed  and  *6ail  to  and  touch, 
L  -I  and  stay,  he,  without  prejudice  to  that  assurance.      And  touching 

the  adventures,  perils,  which  the  capital  stock,  and  goods  of  the  said  Company 
were  made  liable  to,  they  were,  &c.,  (in  the  usual  form.)  Those  were  the 
exceptions,  as  to  corn,  fish,  <fcc. ,  imless  general,  or  the  ship  be  stranded. 
Averment,  that  plaintilFs  were  interested,  &;c.  :  that  the  ship,  after  making  of  the 
policy  and  during  the  continuation  of  tlie  risk,  to  wit,  1.3th  February,  1838, 
"departed  and  set  sail  on  a  certain  voyage '  from  TVaterford  to  London,  and 
that  after  the  commencement  of  the  said  voyage,  and  during  the  continuation  of 
the  risk,  «fcc.,  and  whilst  said  plaintiffs  were  so  interested  as  aforesaid,  &Lc., 
divers  wares,  goods,  and  merchandises,  to  wit,  one  thousand  pigs  of  great 
value,  to  wit.  of  the  value  of  2,000/..  were  shipped  and  loaded  at  ff'afrrford 
aforesaid,  in  and  on  board  the  said  ship  or  vessel,  to  be  carried,  &c.,  on  freight 
from  TVaterford,  aforesaid  to  London,  aforesaid.^"  that  the  said  ship,  whilst 
she  was  proceeding,  &c.,  with  the  said  pigs  on  board,  and  during  the  con- 
tinuance of  the  risk,  and  whilst  the  plaintiffs  were  so  interested,  &c.,  to  wit, 
on  the  day  and  year  last  aforesaid,  by  the  perils  and  dangers  of  the  sea,  &c. , 
became  and  was  leaky,  and  gready  strained,  broken,  &c.  ;  insomuch,  that  by 
means  thereof,  it  then  and  there  became  expedient  and  necessary  for  the  pre- 
servation of  (he  said  ship  and  cargo,  and  for  the  benefit  of  all  concerned  to 
lighten  the  said  ship,  and  cast  and  throw  part  of  her  cargo  overboard  :  and  the 
master  then  and  there  did  for  this  purpose  aforesaid,  cast  overboard  the  said 
pigs,  &c.,  and  leave  them:  whereby  they  were  lost:  by  reason  whereof  the 
plaint ifiV;,  in  respect  of  their  interest  in  the  bull  and  stores  and  machinery  of  the 
said  ship,  then  became  liable  to  bear,  and  did  actually  pay  a  proportionable 
part  of  the  value  of  the  said  pigs  so  lost  as  aforesaid,  and  thereby  sustained 
a  general  average  of  1,000/.  upon  the  hull  and  stores  and  machinery  of  the  said 
vessel  so  assured  and  valued  as  aforesaid  :  and,  in  consequence  thereof,  the  said 
defendants  became  liable  to  pay  to  the  said  plaintiffs  450/.,  being  the  said 
r  sf^n-  "1  defendants'  proportion  of  the  general  average  *loss,  for  and  in 
L  J  respect  of  the  said  sum  of  3,400/.  by  them  assured  as  aforesaid. 

Of  all  Avhich  premises,  &c.,  (notice  to  the  defendants.)  "By  reason  whereof, 
an  action,"  &c. 

Plea  2nd  to  the  first  count.  That  the  said  pigs,  therein  alleged  to  have  been 
so  cast  and  thrown  overboard,  before  and  up  to  the  time  of  their  having  been  so 
cast  and  thrown  overboard,  had  been  and  were  laden  and  placed  in  and  upon 
the  deck  of  the  said  vessel,  by  reason  whereof  the  defendants  were  not,  nor  are 
liable  to  pay  or  contribute  to  any  general  average  loss  sustained  by  the  said  jet- 
tison of  the  said  pigs:  verification.  Replication.  "That  at  the  said  time, 
when  the  said  pigs  were  laden  and  placed  in  and  upon  the  deck  of  the  said 
vessel  of  the  plaintiffs,  as  in  the  second  plea  alleged,  the  said  vessel  of  the 
plaintiffs  was  proceeding  on  and  prosecuting  a  certain  voyage  from  Waterford 
to  London.''^  "That  before  and  at  the  time  of  loading  and  placing  the  said 
pigs  in  and  upon  the  deck  of  the  said  vessel  of  the  plaintiffs,  there  had  been, 


GENERAL    AVERAGE.  281 

and  was  and  still  is,  a  certain  known  and  approved  custom  of  trade  touching 
and  concerning  the  loading  of  pigs  in  and  on  board  of  vessels  trading  between 
JVaterford  and  London^  and  employed  in  carrying  pigs  from  Wat  erf  or  d  to 
London  aforesaid :  that  is  to  say  that  the  owners  of  such  vessels  have  had,  and 
have  been  used  and  accustomed  to  have,  and  of  right  ought  to  have  had,  and 
still  of  riglit  ouglit  to  have,  for  themselves  and  their  servants,  the  liberty  and 
privilege  of  loading  and  placing  in  and  upon  the  deck  of  such  vessels  a  reasona- 
ble number  of  such  pigs  as  they,  from  time  to  time  respectively,  are  employed 
to  bring  from  JVatcrford  to  London.'"  That  the  said  pigs,  in  the  first  count  of 
the  declaration,  and  in  the  second  plea  mentioned,  were  before,  and  up  to  the 
time  of  their  being  so  cast  and  thrown  overboard  as  aforesaid,  laden  and  placed 
in  and  upon  the  deck  of  the  said  vessel  of  the  plaintiff,  in  pursuance  and  accord- 
ing to  the  said  custom  and  usage  of  trade.  Verification.  Demurrer,  assigning 
for  cause  that  it  is  not  stated  in  the  replication  that  the  said  defendants  had  any 
notice  of  tlie  said  custom  therein  stated  and  set  forth,  or  that  the  said  defendants 
had  any  *notice  that  the  said  vessel  would  be  employed  in  carrying  p  ;KKnQ  n 
pigs,  as  in  that  replication  mentioned.    Joinder  in  demurrer.    This  L  J 

demurrer  was  argued  on  November  9th,  1841,  before  Lord  Denman^  C.  J., 
JVUliams,  Coleridge.,  and  TVightman,  Justices.  It  was  ably  argued  by  Cress- 
loell  (now  Mr.  J.  Cressivell)  for  the  defendant,  and  by  the  late  Sir  W.  W. 
Follett  [S.  G.)  for  the  plaintiff.  The  Court,  after  the  argument,  took  time  to 
consider.  And  Lord  Benman,  C.  J.,  on  the  2lst  January^  1842,  delivered 
the  judgment  of  the  Court.  After  stating  the  substance  of  the  declaration  and 
second  plea,  his  Lordship  proceeded  as  follows  : — 

"A  replication  was  pleaded  and  demurred  to,  but  the  plaintiff'  excepted  to  the 
plea;  and  we  must  see  whether  it  makes  out  a  good  defence  in  law.  The  plea 
assumes  that  in  no  case  whatever  can  the  shipowner  recover  from  the  under- 
writer the  value  of  goods  laden  on  deck.  The  authority  cited  for  this  doctrine 
is  a  passage  at  page  428  of  Serjeant  /S'Aee's  recent  edition  (a)  of  Lord  Tenter- 
den's  Treatise  on  Shipping, — 'The  Consolato  del  Mare,  and  the  French  Ordi- 
nance, exclude  from  the  benefit  of  general  average  goods  stowed  upon  the  deck 
of  the  ship;  and  Valin,  in  his  Conunentary  upon  the  latter,  (/;)  gives  two  rea- 
sons for  the  exception.'  He  adds, — 'Lr  the  first  place  they  ought  not  to  be 
there,  and  can  only  be,  because  the  vessel  is  full  without  them,  or  because  the 
master  has  neglected  to  stow  them  elsewhere ;  in  either  of  which  cases  he  and 
his  owners  are  responsible  to  the  shippers,  unless  placed  there  by  his  consent. 
Secondly,  because  there  is  every  reason  to  presume  that,  being  in  the  way, 
they  will  be  thrown  overboard  before  the  necessity  of  jettison  has  occurred,  on 
account  of  the  obstruction  they  create.  But  he  tells  us  that  this  rule  does  not 
apply  to  boats  or  other  small  vessels  going  from  port  to  port,  or  to  trades  in 
which  that  mode  of  stowage  is  sanctioned  by  custom.  The  same  rule  prevails 
in  England  and  America;  the  exceptions  to  it  were  recognized  by  Lord  Ellen- 
borough.,  *in  a  case  between  the  owner  of  goods  and  the  under-  p  *509  "1 
writers  ;  and  more  recently  the  reasoning  of  Valin  has  been  adopted  L  -' 

in  the  Court  of  Common  Pleas,  in  an  action  against  the  owner  of  a  ship  to 
recover  contribution  for  a  loss  by  jettison  of  goods  stowed  on  deck.'  [a)  The 
corresponding  paragraph  in  the  text  of  the  fit\h  edition  of  Lord  Tenterden' s 
Treatise  on  Shipping,  page  355,  (the  last  published  during  his  life)  runs  thus : 
•The  French  Ordinance,  in  express  terms,  excludes  from  the  benefit  of  gen- 


(a)  6th  edit. 

(i)  The  Commentary  on  Liv.  3,  tit.  8,  s.  13,  contains  the  passage  referred  to. 
(«)   Gould  V.  Oliver,  5  Scott,  445;  4  B.  N.  C.  134;  and  see  the  case  fully  referred  to 
in  a  subsequent  action  between  the  same  parties,  ante,  p.  20,  of  this  Treatise. 


282  GENERAL    AVERAGE. 

eral  average  goods  stowed  on  deck,  and  the  same  rule  prevails  in  practice  (b) 
in  this  country.  Goods  so  stowed  may,  in  many  cases,  obstruct  the  manage- 
ment of  the  vessel;  and,  except  in  cases  where  usage  may  have  sanctioned  the 
practice,  the  master  ought  not  to  stow  them  there  without  the  consent  of  the 
merchant.  Upon  this  passage  we  may  remark,  that  it  contains  no  statement 
of  the  exception  as  a  part  of  the  general  law  of  merchant  or  the  law  of  Eng- 
land. It  is  said  to  prevail  in  praclice  in  this  country;  the  note  adding,  'so 
proved  in  the  causes  of  Myer  and  others  v.  Vunder  DexjU  Guildhall  Sittings, 
before  Lord  Elle.n1jorou2;h,  1803,  and  of  Backhouse  v.  Ripley,  before  Cham- 
bre,  .T. ,  a  short  time  before.'  No  particulars  of  these  cases  being  preserved, 
we  cannot  know  in  what  manner  the  question  was  brought  on.  In  lioss  v. 
Thwaites,  reported  at  page  23  of  Park  on  Insurance,  (c)  and  tried  before  Lord 
Mansfield  at  Gi/ildhall,  'an  action  was  brought  upon  a  policy  of  insurance  of 
the  captain's  goods  for  six  months  certain.  The  loss  proved  was  chiefly  of 
goods  lashed  on  deck,  and  the  captain's  clothes,  and  the  ship's  provisions.  It 
was  proved  by  an  underwriter  and  a  broker,  that  none  of  these  things  are 
r  *'iin  1  within  a  general  policy  on  goods,  for  the  risk  was  greater  *as  to 
L  J  goods  lashed  on  deck  than  other  goods :  and  a  policy  on  goods 

means  only  such  goods  as  are  merchantable  and  a  part  of  the  cargo.  They 
also  swore  that  when  goods  like  the  present  are  meant  to  be  insured,  they  are 
always  insured  by  name,  and  the  premium  is  greater.  Lord  Mansfield  said, 
'he  thought  it  was  consistent  with  reason,  and  understood  the  usage  to  be  so; 
therefore  he  advised  the  plaintiff"  to  withdraw  a  juror,  the  premium  having  been 
paid  into  Court,  to  which  he  consented."  When  Serjeant  Marshall  copied 
this  report  into  his  Treatise,  (735)  he  appends  this  note,  "See,  however,  De 
Costa  V.  Edmunds,  (a)  where  it  was  contended  for  the  underwriters  that  they 
were  not  liable  for  goods  stowed  on  the  deck,  for  which  were  cited  Ross  v. 
Thwaites,  [b)  and  Backhouse  v.  Ripley,  (c)  But  Lord  Ellenborough  left  it  to 
the  jury  to  say  whether  it  was  usual  to  carry  vitriol  on  the  deck,  and  whether 
these  cargoes  were  properly  stowed.  If  there  was  a  usage  to  carry  vitriol  on 
deck,  the  underwriters  were  bound  to  take  notice  of  it  without  any  communi- 
cation, and  all  they  could  require  was,  that  the  cargoes  should  lie  stowed  in 
the  usual  manner.'  Verdict  for  the  plaintiff.  Rule  for  a  new  trial  refused,  (c?) 
It  is  very  singular  that  Lord  Tenterden  does  not  cite  this  case,  for  he  expressly 
lays  down  the  principle  on  which  it  was  determined.  But,  before  we  arrive  at 
the  exception  to  the  rule  which  is  here  introduced,  we  must  observe  upon  the 
nature  of  the  rule  itself.  In  the  first  place,  it  is  the  creation  of  a  positive  regu- 
lation in  the  foreign  law  alluded  to,  for  reasons  whicli  may  possibly  furnish  an 
adequate  motive  for  such  enactment.  'Goods  so  stowed,' Lord  Tenterden 
remarks,  'in  many  cases  may  obstruct  the  management  of  the  vessel ;'  a  reason 
which  is  by  no  means  universal,  for  in  many  cases  it  may  be  that  particular 
goods  will  be  best  and  most  safely  stowed  on  deck.  But  the  most  important 
expression  of  this  accurate  and  careful  writer  is  that  which  describes  the  rule 
r  *Ki  1  -]  ^^  prevailing  in  practice  in  *this  country.  For  the  practice  appears 
L  J  to  have  been  not  to  lay  it  down  as  a  rule  of  law  that,  for  goods 

stowed  on  deck,  the  owner  of  them  shall  be  excluded  from  the  benefit  of  general 
average,  but  to  receive  the  evidence  of  commercial  men  respecting  the  usage  of 


(b)  In  Mr.  Serjeant  Sbee's  last  edit.  (7th)  he  says,  in  a  note,  that  in  submission  to  what 
was  said  by  the  Court  of  Queen's  Bench,  in  the  case  of  Milward  v.  Hibbert,  he  has  altered 
the  text  in  his  7th  edition,  and  restored  the  "words  of  the  author,"  viz:  the  words  "in 
practice." 

(c)  Page  23,  8th  edit.  (a)  4  Camp.  142. 

{I})   Park  Ins.  2.3.  (c)  Abbott  on  Shipp.  6th  edit.  429. 

Id)  De  Costa  v.  Edmunds,  2  Chitt.  227. 


GENERAL    AVERAGE.  283 

the  trade  and  the  general  understanding  of  those  engaged  in  it,  and  ia  insuring 
which  may  obviously  vary,  and  require  from  time  to  time  fresh  evidence  and 
different  explanations.  Again,  the  reasons  which  may  have  produced  the 
foreign  enactment,  and  are  cited  l)y  T^alin,  are  by  no  means  adopted  by  Lord 
Tenterden.  He  mentions,  indeed,  only  one  of  them — the  danger  of  obstruct- 
ing the  management  of  the  vessel — but  in  extremely  qualified  terms,  "goods  so 
stowed  may  in  many  cases  obstruct  the  management  of  the  vessel  5"  a  sufficient 
ground  for  refusing  contribution  under  particular  circumstances,  but  none  for  a 
sweeping  forfeiture  of  all  right  to  recover  in  respect  of  goods  so  disposed. 
Lastly,  the  rule  laid  down  by  Lord  Tenterden  includes  two  exceptions,  where 
usage  may  have  sanctioned  the  practice,  and  where  the  master  has  the  owner's 
consent  to  stow  them  there.  The  usage  would  affect  the  question  whoever 
were  the  parties :  the  owner's  consent  only  when  it  happened  to  arise  between 
him  and  the  master.  Plainly,  then,  the  authority  of  Lord  Tenterden  does  not 
warrant  the  large  statement  respecting  the  English  law  which  his  last  learned 
editor  promulgates.  Indeed,  this  paragraph  bears  the  mark  pointed  out  in  the 
preface  as  distinguishing  his  additions  to  the  original  work,  though  it  incorpo- 
rates some  parts  of  that  corresponding  with  it.  We  may  further  observe  that 
the  two  reasons  quoted  from  Vahn  are  not  of  general  application.  He  says, 
'that  goods'  ought  not  to  be  stowed  on  deck,  and  can  only  be,  because  the  ves- 
sel is  full  without  them,  or  because  the  master  has  neglected  to  stow  them  else- 
■where,  in  either  of  which  cases  he  and  his  owners  are  responsible  to  the  ship- 
per, unless  the  goods  were  placed  there  with  his  consent.  Secondly,  because 
there  is  every  reason  to  presume  that,  being  in  the  way,  they  will  be  thrown 
overboard  before  the  necessity  of  jettison  has  occurred,  on  *account  r-  ^ri^o  1 
of  the  obstruction  they  create."     Now  it  is  obvious  that  there  may  '-  ^ 

be  other  and  valid  reasons  for  stowing  goods  on  deck ;  indeed,  some  goods 
could  be  stowed  in  no  other  place,  such  as  timber,  and  on  some  voyages  live 
animals,  and  they  may,  certainly,  be  there  stowed  with  proper  skill  and  care, 
so  as  not  to  be  in  the  way  of  the  crew  in  their  operations.  These  matters  of 
fact  may  vary  with  every  different  trade,  or  even  with  every  single  adventure. 
The  danger  of  a  crew  being  tempted  to  throw  overboard  goods  on  deck,  before 
the  ship  is  in  danger  is  quite  insufficient;  that  danger  must  depend  upon  their 
weight  and  bulk,  the  manner  of  stowage,  and  many  other  particulars ;  but  the 
argument  would  prove  too  much,  for  it  would  apply  to  whatever  goods  may  be 
nearest  at  hand,  and  consequendy  likely  to  be  the  soonest  sacrificed.  "When 
we  say  that  the  reasoning  of  Valin  was  adopted  by  the  Court  of  Common  Pleas 
(in  the  late  case  of  Gould  v.  Oliver,  (a) )  we  must  confine  ourselves  to  his  rea- 
soning in  favour  of  the  owner  of  goods  stowed  on  deck,  according  to  the 
custom  of  a  particular  trade,  in  accordance  with  Lord  Ellenboroiigli's  decision 
in  De  Costa  v.  Edmunds,  [b)  The  Lord  Chief  Justice,  without  laying  down 
the  rule  or  the  mode  of  provinir  it,  but  assuming  it  to  prevail  in  practice,  and 
only  deciding  that  the  owner  may,  notwithstanding,  recover  contribution  from 
the  shipowner  where  the  goods  were  stowed  on  deck  according  to  the  usage  of 
the  trade  for  a  loss  by  jettison.  We  have,  then,  this  exception  forming  part  of 
the  rule :  and  we  have  seen  that  Vcdin  introduces  another,  for  which  there  is 
no  other  obvious  reason,  that  of  boats  or  other  vessels  going  from  port  to  port ; 
a  description  of  the  size  and  destination  of  vessels  which  may  be  somewhat  diffi- 
cult of  application. 

But  althouffh  this  rule  of  excluding  goods  stowed  on  deck  from  contribution 
to  general  average  is  not  founded  on  any  universal  principle,  it  certainly  pre- 
vails in  practice  to  a  great  extent.      Serjeant  Shee  truly  says,  "that  the  law  ia 


(a)  5  Scott,  445;  4  N.  C.  134.  (b)  4  Camp.  142. 


284  GENERAL    AVERAGE. 

r  ifrio  ~\  ^'*6  same  *on  this  subject  in  England  and  America;"  and  Judg^e 
L  '  *  J  S'i'on/,  ill  his  vnhiable  edition  of  JJbbolt  on  S/iipping,  (o)  proves 
this  projxjsition  by  two  decisions.  'J'he  books  in  whicli  these  are  reported  are 
not  at  hand ;  but  we  have  already  shown  that  the  law  of  England  has  stopped 
very  short  of  the  doctrine,  that  no  owner  of  goods  slowed  on  deck  sliall,  under 
any  circuinstaiic(!,  be  allowed  to  recover  contribution  on  general  average.  The 
question  between  the  merchant  and  the  shipowner  may  be  difi'erent  I'rom  that 
between  either  of  them  and  the  underwriters,  because  the  former  may  agree  to 
stow  the  goods  in  such  a  manner  that  the  latter  will  not  lj(!  at  all  responsible 
for  their  loss. 

But  it  seems  to  the  Court,  for  the  reasons  assigned,  that  die  mere  fact  of 
stowing  tliem  on  deck  will  not  relit^ve  the  underwriters  from  responsibility, 
inasmuch  as  diey  may  be  placed  Uiere  according  to  the  usage  of  the  trade,  and 
so  as  not  to  impede  the  navigation,  or  in  any  way  increase  the  risk. 

And  it  is  accordingly  the  practice  in  wiialing  voyages,  to  adjust,  on  the  prin- 
ciples of  general  average,  the  loss  of  oil  thrown  overl)oard  from  the  deck, 
where  it  is  carried  a  short  time  after  it  is  put  into  casks,  before  it  can  be  pro- 
perly and  safely  stowed  in  the  hold.  (/;) 

The  boats,  of  a  ship  ought  to  be  lashed  on  deck,  if,  however,  they  are 
properly  lashed  to  the  quarters  it  is  customary  to  consider  the  loss  a  general 
average,  (c) 

There  are  two  instances  in  which  it  has  been  the  subject  of  much  doubt  and 
discussion,  Vv'hether  the  loss  in  those  cases  are  to  be  considered  as  the  subject 
of  a  general  average  or  not.  These  are  where  the  master  voluntarily  runs  his 
ship  on  shore,  either  to  avoid  being  captured  by  the  enemy,  or  to  prevent  her 
foundering  at  sea,  or  driving  on  the  rocks.  By  the  foreign  ordinances,  and 
according  to  foreign  writers,  when  the  running  the  ship  on  shore  is  the  volun- 
r  *"14.  •  ~1  ^''^y  deliberate  act  of  the  master,  for  the  benefit  of  all  concerned, 
L  -'  it  is  *to  be  considered  as  general  average,  (o)     And  the  Consolato 

del  Mare,  [b)  and  Boccus,  (c)  say  that,  if  to  avoid  a  total  loss  the  captain  and 
crew  should  think  it  proper  to  run  the  ship  on  shore,  (he  damage  thereby 
occasioned,  whether  to  ship  or  cargo  will  be  a  gross  average.  And  JFeskett 
and  Aid  gens  seem  to  have  been  favourable  to  the  same  conclusion.  ((/) 

The  learned  Fothier,  after  enumerating  other  species  of  averages,  says, 
"besides  these  species  of  average  there  is  another,  viz:  where  a  ship  being 
chased  by  an  enemy,  the  master,  in  order  to  prevent  her  capture,  runs  her 
ashore,  the  damage  caused  is  a  general  average,  whether  it  happen  to  the  ship 
or  cargo,  the  running  on  shore  having  been  made  for  the  general  safety."  (e) 
On  this  subject  there  are  no  express  decisions  of  our  Courts  of  Justice,  thouo-h 
we  can  hardly  see  in  what  respects  running  a  ship  on  shore  to  prevent  its  falling 
into  the  hands  of  the  enemy,  can  be  distinguished  from  the  case  of  carryino-  an 
unusual  press  of  sail  for  the  same  purpose,  the  damage  consequent  upon  which 
we  have  seen  has  been  decided  to  be  not  the  proper  subject  of  a  general  aver- 
age. (/) 

With  respect  to  the  other  instance  there  does  not  appear  to  be  any  real  dis- 
tinction betwixt  the  master  voluntarily  and  by  deliberation  running  his  ship  on 


(a)  Page  355,  ed.  Boston,  1829,  (b)  Phillips  on  Ins.  vol.  ],  p.  333. 

(c)   Blackett  v.  Royal  Exch.  2  Cr.  &  J.  244;  2  Tyr.  266'. 

(«)  Vid.  Onl.  France  Leg.  Rhod.  3,  5,  1;  Ord.  Konigsb.  (1),  c.  viii.  art.  7;  Ord. 
Copeiih.  art.  "Av."  1,  5;  Laws  of  Wisbuy,  art.  .'iS;  Molloy,  b.  2,  c.  G,  s.  15;  Beawes, 
165;   Wclwood,  tit.  20. 

(A)   Consol.  del  Marc,  c.  192,   193.  (c)  Roccus  de  Nav.  Not.  Ix.  n.    164. 

(f/)   2  Magoris,  332;   Weskctt,  252.  (e)  Poth.  Contr.  de  Lou.  p.   11. 

(/)  Covington  v.  Roberts,  2  N.  R.  378;  Poth.  C.  &.  L.  p.  ii.  s.  2,  n.  150. 


GENERAL    AVERAGE.  285 

shore,  in  order  to  avoid  her  sinking,  or  going  upon  the  rocks,  for  the  sake  of 
the  whole  concern,  and  the  case  where  he  deUberately  cuts  away  part  of  the 
ship,  or  throws  part  of  the  cargo  overboard,  in  order  to  save  the  rest.  In  both 
cases  a  certain  damage  to  the  ship  or  cargo  is  deliberately  incurred  for  the  sake 
of  preserving  the  whole.  The  learned  author  of  the  Treatise  on  Average^  to 
which  I  have  so  frequently  referred,  gives  his  •opinion  that  these  ^  r.-,^  -, 
cases  cannot  properly  be  considered  as  cases  of  general  average,  L  '      J 

but  come  under  the  head  of  those  losses,  which  are  inevitable,  and  ought  to  be 
borne  by  the  parties  themselves,  separately,  though  he  admits  tiiat  the  practice 
is  the  other  way.  {a) 

It  is  said,  that  if  a  ship  he  taken  by  force,  carried  into  some  port,  and  the 
crew  remain  on  board  to  take  care  of  and  reclaim  her,  not  onlv  the  charges  of 
reclaiming  sliall  be  brought  into  a  general  average,  but  the  wages  and  expenses 
of  the  ship's  company  during  her  arrest,  from  the  time  of  lier  capture,  and 
being  disturbed  in  her  voyage,  [b)  In  this  idea  Magcns  concurs,  and  asserts, 
that  such  expenses  are  allowed  as  average  in  London  as  well  as  elsewhere. 
He  denies,  however,  and,  as  it  seems,  jusdy  denies,  that  an  allowance  would 
be  made  under  general  average,  for  sailors'  wages  and  victuals,  when  they  are 
under  a  necessity  of  performing  quarantine,  in  which  case  the  master  would 
have  been  obliged  to  maintain  and  pay  them,  though  his  vessel  had  arrived  only 
in  ballast.  But  at  the  same  time  he  admits,  that  charges  occurring  by  an  extra- 
ordinary quarantine  shall  be  i)rought  into  a  general  average,  (c) 

It  has  however  been  a  considerable  question,  whether  the  extraordinary 
wages  and  victuals  expended  during  the  detention  by  a  foreign  prince  not  at 
war  ought  to  be  brought  into  a  general  average,  so  as  to  charge  the  underwriter.^ 
3fagens  and  Beawes  differ  u])on  the  point,  the  latter  being  of  opinion  that  it 
should,  the  former  that  it  should  not.  In  England  there  is  no  adjudged  case, 
nor  any  regulation  upon  the  subject.  We  may  remember  that  Lord  JMansJiehU 
in  Goss  V.  Withers,  2  Burr.,  p.  690,  says,  "that  by  the  general  law  the 
assured  may  abandon  in  the  case  of  merely  an  arrest  on  an  embargo  p  i^-ia  ~\ 
*by  a  prince  not  an  enemy  :  and   therefore  one   would  suppose  L  J 

extraordinary  wages  and  victuals  would  not  come  under  the  head  of  a  general 
contribution,  for  the  owner  has  the  right  to  abandon  if  he  likes,  or  at  any  rate 
the  underwriters  on  ship  would  be  liable  to  the  assured. 

Mr.  Park  [a)  says,  that  Lord  Mansfield  seems  to  have  been  of  that  opinion 
in  an  action  upon  a  policy  of  insurance  on  a  "ship."  It  was  brought  to 
recover  the  amount  of  wages  and  provisions  expended  during  the  time  the  ship 
went  from  Bengal  to  Bombaij  to  repair.  His  Lordship,  as  he  has  frequently 
done  since  upon  similar  occasions,  decided  against  the  action,  being  an  insu- 
rance on  the  ship  only,  and  the  item  in  question  being  sailors'  wages.  But  his 
Lordship  said,  there  may  be  cases  where  exceptions  to  the  general  rule  should 
be  allowed;  but  in  order  to  consider  a  case  as  excepted,  it  must  be  an  expense 
absolutely  necessary,  and  such  as  could  not  be  avoided,  owing  to  some  of  the 
perils  stated  in  the  policy. 

It  has  been  stated  in  a  preceding  part  of  this  Treatise,  that  extra  wages  and 
provisions  cannot  be  recovered  from  the  underwriters  on  "ship"  merely. 
Fletcher  v.  Poole,  Park  Ins.,  115,  and  other  cases,  were  cited,  and  this  was 


(a)  Stevens,  29 ;  and  see  Abb.  on  Shipp.  6th  edit.  433,  where  the  editor  refers  to  the 
law  and  authorities  in  America  on  the  subject,  from  which  it  would  appear  that  when  the 
damage  arises  from  a  "deUberate  sacrifice  for  the  general  benefit,"  it  has  been  considered 
that  such  a  loss  from  running  a  ship  on  shore  is  to  be  considered  as  a  general  average. 

(/>)   Beawes,  150.  (c)    1  Mag.  67. 

(a)  Park  Ins  p.  287.  In  tlie  case  of  Lateward  v.  Curling,  Guildhall,  Sit.  after  Trin. 
1776. 


286  GENERAL    AVERAGE. 

lately  settled  in  the  case  of  Be  Faux  v.  Salvador,  4  A  &  E.  p.  425.  It  seeras 
to  be  admitted,  that  where  there  is  any  damage  sustained  by  tlie  ship  which  is 
the  subject  of  a  general  contribution,  the  wages  and  other  expenses,  during  the 
time  of  repair,  follow  as  accessaries,  and  form  part  of  the  general  contribution. 

By  the  ordinances  of  Louis  the  Fourteenth,  the  charges  in  such  a  case  shall 
be  reputed  general  average,  if  the  seamen  be  hired  by  the  month ;  otherwise, 
if  by  the  voyage,  (d) 

There  is  a  passage  in  Beajves  which  confirms  the  idea  entertained  by  Lord 
Mansfield.  "Though  it  must  be  noted,"  says  this  author,  "that  the  charges 
of  unloading  a  ship,  to  get  her  into  a  river  or  port,  ought  not  to  be  brought 
r  «f;i7  "1  i"^o  ^  ^general  average;  but  they  may  when  occasioned  by  an 
L  J  indispensable  necessity  to  prevent  the  loss  of  ship  and  cargo.     As 

when  a  ship  is  forced  by  a  storm  to  enter  a  port  to  repair  the  damage  she  has 
suffered,  if  site  cannot  continue  her  voyage  without  an  apparent  risk  of  being 
lost,  in  which  case  the  wages  and  victuals  of  the  crew  are  brousfht  into  an 
average  from  the  day  it  was  resolved  to  seek  a  port  to  refit  the  vessel,  to  the 
day  of  her  departure  from  it,  with  all  the  charges  of  unloading,  reloading,  anchor- 
age, pilotage,  and  every  other  expense  incurred  by  this  necessity."  [a) 

A  question  nearly  similar  came  before  the  Court  of  King's  Bench  in  the  case 
of  Ba  Costa  v.  Ncwnham,  {b)  in  which  Mr.  Justice  Buller  quoted  the  above 
passage  from  Beawes,  as  also  the  above-mentioned  case  of  Latevmrd  v.  Curl- 
ing: and  although  the  learned  Judge  thought  it  then  unnecessary  to  decide  the 
point  here  agitated,  yet  the  leaning  of  his  mind  seem.ed  to  be  in  favour  of  the 
affirmative.  This,  however,  was  held  by  the  whole  Court, — that  where  a 
ship  is  obliged  to  go  into  port  for  the  benefit  of  the  whole  concern,  the  charges 
of  unloading  and  reloading  the  cargo,  and  taking  care  of  it,  and  the  wages  and 
provisions  of  the  workmen  hired  for  the  repairs,  become  general  average. 

Where  a  ship  went  into  port  in  distress,  and  wanting  repairs,  it  became 
necessary  to  take  out  the  cargo,  and  there  being  no  warehouses  at  hand,  it  was 
put  on  board  other  vessels.  Lord  Stowell  held,  that  as  the  unloading  of  the 
goods  was  for  the  common  benefit  of  all,  it  being  necessary  to  unload  the  ship 
for  the  preservation  of  the  cargo,  as  well  as  for  its  own  repairs,  the  expense 
incurred  by  it  must  be  considered  as  a  general  average,  (c) 

In  Ba  Costa  v.  Nnvnham,  the  custom  of  Lloyd's  of  deducting  one-third 
new  for  old  materials  after  a  ship's  first  voyage,  was  recognized.  (</)  And 
whether  a  ship  is  to  be  considered  on  her  first  voyage,  may  be  ascertained  by 
r  *518  1  ^^^^  *general  understanding  of  merchants  as  well  as  by  the  testimony 
•-  J  of  underwriters,  (o)     And  when  the  evidence  is  contradictory,  the 

terms  of  the  charter-party  and  policy  may  be  taken  into  consideration,  [b) 

And  in  the  case  of  Plummer  v.  Wildman,  [c]  where  a  ship  in  the  course  of 
her  voyage  was  run  foul  of  by  another,  and  the  captain  is  obliged  to  cut  away 
the  rigging,  and  to  return  to  port  to  repair  the  damage  and  cutting  away,  with- 
out which  it  was  found  the  vessel  could  not  have  prosecuted  her  voyage,  nor 
kept  the  sea  with  safety:  the  Court  held,  that  the  expenses  of  repairs,  so  far 
as  they  were  absolutely  and  unavoidably  necessary  for  the  general  safety  of  the 
whole  concern,  but  no  further,  and  the  unloading  for  the  purpose  of  repairs 
were  a  general  average.      But  the  captain's  expenses  during  the   unloading, 


(rf)  Tit.  Average,  art.  7.  (a)  Beawes,  150. 

(i)  2  T.  K.  407.  (c)  The  Copenhagen,  1   Rob.  A.  R.  298. 

{d)  See  Poingdestre  v.  Royal  Exchange  Comp.  R.  &  M.  .'378. 

(a)   Pirie  v.  Steele,  2  M.  &  R.  49. 

(i)  Per  Lord  Tenferden,  in  Fenwick  v.  Robinson,  1  Danson  &  Lloyd,  8. 

(c)  3  M.  &  S.  482. 


GENERAL    AVERAGE.  287 

repair,  and  reloading,  the  sliipowner  must  bear :  and  crimpagc  for  replacing 
deserted  seamen  is  not  general  average. 

Lord  Ellrnhorough  said,  "If  tlie  return  to  port  was  necessary  for  the  gen- 
eral safety  of  the  whole  concern,  the  expenses  ^^voidably  incurred  by  such 
necessity  might  he  considered  as  a  general  average.  It  is  not  so  much  a  ques- 
tion whether  the  first  cause  of  the  damage  was  owing  to  this  or  that  accident, 
to  the  violence  of  the  elements,  or  to  the  collision  of  another  ship,  as  whether 
the  effect  produced  was  such  as  (o  incapacitate  the  ship,  without  endangering 
the  whole  concern,  from  further  prosecuting  lier  voyage,  unless  she  returned  to 
port  and  removed  tiie  impecHnient.  As  far  as  removing  the  incapacity  is  con- 
cerned, all  are  equally  benefited  by  it,  and,  therefore,  it  seems  reasonable  that 
all  should  contribute  to  the  expenses  of  it,  but  if  any  benefit  tdtrd  the  mere 
removal  of  this  incapacity  should  have  accrued  to  the  ship  by  the  repairs  done, 
inasmuch  as  that  will  redomid  to  the  particular  benefit  of  the  shipowner  only, 
it  will  not  come  under  the  head  of  general  average;  l^ut  that  it  will  be  a  matter 
of  calculation  *upon  the  adjustment.  The  amount  of  the  expenses  j-  *i'-^n  -i 
of  repairs,  to  be  placed  to  the  account  of  general  contribution,  must  ^  J 

be  stricdy  confined  to  the  necessity  of  the  case,  to  enabling  the  ship  with  her 
cargo  to  prosecute  the  voyage.  As  to  the  charge  for  the  captain's  expenses 
during  the  unloading,  repairing,  and  reloading,  tiie  shipowner  must  bear  the 
captain's  expenses  in  port,  and  crimpage  must  be  disallowed,  it  does  not  come 
under  (general  averaire." 

But  this  point  came  afterwards  into  discussion  in  a  case  of  Power  v.  Tfliit- 
7nore,  (a)  in  the  King's  Bench,  where  that  Court  held,  in  opposition  to  the 
passage  in  Jieawcs,  and  to  the  inclination  of  Mr.  .Tustice  Buller\'i  opinion  in 
Da  Costa  v.  Ncwnhain,  that  the  wages  and  provisions  of  the  crew,  while  the 
ship  remained  in  port,  whither  she  was  compelled  to  go  for  the  safety  of  the 
ship  and  cargo,  in  order  to  repair  a  damage  occasioned  by  tempest,  were  not 
the  subject  of  general  average.  They  also  held  that  the  expenses  of  the  repairs 
themselves  were  not  general  average  ;  nor  were  the  wages  and  provisions  of  die 
crew  during  her  detention  in  port  to  which  she  had  returned,  and  was  detained 
there  on  account  of  adverse  winds  and  tempests ;  nor  was  the  damage  occa- 
sioned to  tlie  ship  and  tackle  by  standing  out  to  sea  with  a  press  of  sail  in 
tempestuous  weather,  in  order  to  avoid  an  impending  peril  of  being  driven  on 
shore  and  stranded,  (b) 

Lord  Ellenborotigh  said,  "general  average  must  lay  its  foundation  in  a 
sacrifice  of  a  part  for  the  sake  of  the  rest,  but  here  was  no  sacrifice  of  any  part 
by  the  master,  but  only  of  his  time  and  patience,  and  the  damage  incurred  was 
by  the  violence  of  the  wind  and  weather,  this  is  not  like  the  case  recendy  before 
the  Court,  (c)  where  the  master  was  obliged  to  cut  away  his  rigging  in  order  to 
preserve  the  ship,  and  afterwards  put  into  port  to  repair  that  which  lie  sacri- 
ficed." And  it  was  decided  in  the  case  of  Price  v.  Noble,  [d)  that  the  owners 
of  a  ship's  cargo  were  liable  to  a  contribution  for  *ship's  stores  j-  .^=^.20  ~\ 
necessarily,  and  by  the  advice  of  the  mate  thrown  overboard,  after  L  J 

she  was  captured,  and  while  in  the  possession  of  the  enemy :  for  the  capture, 
without  condemnation,  did  not  divest  the  property  of  the  owners  while  a  spes 
recuperandi  remained. 

The  general  principle  of  law  deducible  from  these  decisions  appears  there- 
fore, to  be,  that  if  a  vessel  is  compelled  to  put  into  port,  to  repair  a  damage, 
which  is  itself  the  subject  of  a  general  average,  all  tlie  necessary  expenses  of 

(a)  4M.  &S.  141. 

(i)  See  Covington  v.  Roberts,  ante,  p.  503. 
(c)  Plunimer  v.  Wildman,  nn/e,  p.  518.        (d)  4  Taunt.  123. 
Vol.  VII.— U 


288  GENERAL    AVERAGE. 

port  charges,  wages,  and  provisions,  and  the  expense  of  unloading  and  reloading 
the  said  ship,  and  the  necessary  outlay  in  putting  the  sliip  in  a  condition  to 
enable  her  to  pursue  her  voyage,  are  properly  llie  subjects  of  a  general  contri- 
bution. But  where  a  vesse^uierely  puts  into  a  port  from  stress  of  weather, 
though  this  may  be  an  act  o^rudence  on  the  part  of  the  captain,  and  for  the 
benefit  of  all,  yet,  inasmuch  as  it  does  not  result  from  any  sacrifice  on  the  part 
of  the  owners  for  the  benefit  of  the  whole  concern,  the  expenses  attendant  upon 
this  step  are  not  properly  the  subject  of  a  general  contribution,  but  must  be 
borne  by  the  shipowners  themselves. 

It  is  laid  down  by  writers  practically  acquainted  with  the  subject,  that  the 
loss  of  exchange  on  bills  drawn  by  the  captain  on  his  owners,  for  the  ship's 
disbursements,  in  putting  into  a  port  in  distress;  maritime  interest  on  bottomry 
bonds,  obliged  to  be  given  under  similar  circumstances,  interest  on  advances 
and  the  like  charges,  are  the  subjects  of  general  average,  but  it  is  submitted 
that,  strictly  speaking,  these  charges  must  follow  as  incidents  to  the  nature  of 
the  loss,  and  that  if  it  be  not  itself  of  the  character  of  a  general  average,  these 
respective  charges  consequent  thereupon  will  not  partake  of  it  either,  (a) 

If  a  vessel  be  disabled  by  the  perils  of  the  sea,  from  carrying  her  cargo  to 
its  place  of  destination,  the  master  may  hire  another  vessel,  or  borrow  money 
on  the  security  of  his  ship  or  cargo.  But  if  he  be  unable  to  raise  money  on 
P  ^_„.  -,  bottomry,  *or  by  hypothecation  of  the  cargo,  and  no  other  vessel 
L  J  can  be  obtained,  Lord   Stowell  determined  that  the  master  might 

sell  a  portion  of  the  cargo,  to  enable  him,  by  repairing  his  vessel  to  carry  the 
remainder  to  its  place  of  destination,  and  that  the  money  so  obtained  might 
make  the  subject  of  a  general  average,  {h) 

But  in  the  case  of  Dobson  and  others  v.  TTilson,  (c)  where  a  ship,  having 
met  with  tempestuous  weather  in  her  voyage  from  Hull  to  St.  Petersburg^  was 
obliged  to  put  into  Copenhagen  to  unload  and  repair;  the  expenses  of  which 
repairs,  as  well  as  the  Sound  dues,  were  paid  by  the  owner's  agent  at  Copen- 
hagen :  and  the  ship  being  ready  to  proceed  on  her  voyage,  the  English  expe- 
dition against  Copenhagen  coming  in  sight  she  was  seized  by  the  Danish 
government,  and  the  captain  and  crew  made  prisoners  of  war.  In  consequence 
of  the  hostilities,  it  being  impossible  to  negotiate  bills  on  England,  for  the 
purpose  of  repaying  the  agent  the  sums  he  had  advanced  for  the  use  of  the 
ship,  the  agent  caused  the  captain  to  be  arrested,  by  process  by  the  maritime 
Court  of  Justice  at  Copenhagen.  In  this  situation  the  captain,  for  his  libera- 
tion from  imprisonment,  and  that  he  might  be  able  to  prosecute  his  voyage,  sold 
a  portion  of  the  cargo  belonging  to  the  plaintiffs  who  brought  an  action  against 
another  shipper  for  contribution.  Lord  EUenborough  said,  -'that  had  the  ship 
been  seized  for  the  non-payment  of  the  Sound  dues,  I  should  have  thought 
that  a  sale  of  a  part  of  the  cargo  to  pay  them,  in  the  absence  of  all  other  means 
to  raise  money  for  that  purpose  might  have  been  the  claim  for  a  general  average. 
But  these  dues  had  been  paid  by  the  ship's  agent,  and  the  money  so  paid 
merely  constituted  a  private  debt  due  to  him.  I  do  not  think  that  any  part  of 
the  plaintifl's'  goods  was  sacrificed  for  the  safety  of  the  ship,  and  the  residue 
of  the  cargo,  in  such  a  manner  as  to  give  them  a  right  to  a  contribution  from 
r  *-.)9  -1  ^'i'3  other  shippers  of  goods  on  *board.  Their  proper  remedy  is 
L  J  against  the  owner  of  the  ship." 

II.  Secondly,  let  us  now  consider  what  articles  are  to  contribute  to  make 
good  these  losses,  and  in  what  proportion. 

(a)  See  Stevens,  27. 

(b)  The  Gratitudine,  3  Rob.  Ad.  Rep.  255,  and  see  Wilson  v.  Millar  and  others,  2 
Stark.  1.  (c)  3  Camp.  480. 


GENERAL    AV'ERAGE.  289 

By  tlio  anciont  laws  of  Rhodes^  Olcron,  and  Tflslnty,  the  ship,  and  all  the 
reniainino:  goods,  shall  contribute  to  the  loss  sustained,  (a)  The  most  valuable 
goods,  though  their  weight  should  have  been  incapable  of  putting  the  ship  in 
the  least  hazard,  as  diamonds  or  precious  stones,  must  be  valued  at  their  just 
price  in  this  contribution,  because  they  could  not  have  been  saved  to  the  owners 
but  by  the  ejection  of  the  other  goods.  Neither  the  persons  of  those  in  the 
shif),  nor  the  sliip's  provisions,  nor  respondentia  bonds,  suffer  any  estimation ; 
nor  does  wearing  apparel  in  chests  and  boxes,  nor  do  such  jewels  as  belong  to  the 
person  merely  :  but  if  the  jewels  are  a  part  of  the  cargo,  they  must  contribute. 

Those  who  carry  jewels  by  sea  ought  to  communicate  that  circumstance  to 
the  master;  because  the  care  of  them  will  be  increased  in  proportion  to  their 
worth,  to  prevent  their  being  thrown  overboard  promiscuously  with  other 
things :  and  hence  their  preservation  will  be  a  common  benefit.  (6) 

2.  Both  by  law  and  custom,  the  wages  of  sailors  are  not  to  contribute  to  the 
general  loss;  a  provision  intended  to  make  this  description  of  men  more  easily 
consent  to  a  jettison,  as  they  do  not  then  risk  their  all,  being  still  assured  that 
their  wages  will  be  paid,  (c) 

3.  The  way  of  fixing  a  right  sum,  by  which  the  average  ought  to  be  com- 
puted, can  only  be  by  examining  what  the  whole  ship,  freight,  and  cargo,  if 
no  jettison  had  been  made,  would  have  produced  net,  if  they  had  all  belonged 
to  one  person,  and  been  sold  for  ready  money.  And  this  is  the  sum  whereon 
the  contribution  should  be  made,  all  the  particular  goods  bearing  their  net  pro- 
portion, (d) 

*4.  In  no  respect  whatever  do  the  ordinances  of  foreign  states  dif-  ^  *roQ  -i 
fer  so  much,  as  in  the  manner  of  setding  the  contribution  of  the  ship  L  ^■"*  J 
and  freight.  In  some  places,  the  ship  contributes  for  the  whole  of  her  value 
and  freight;  in  others,  for  the  half  of  her  value,  and  one-third  of  her  freight: 
and  again,  in  others,  both  ship  and  freight  are  to  contribute  for  one-half,  (o) 
By  the  laws  of  Ko}iins^sberg,  Hamburgh  and  Copenhagen,  the  ship  is  to  con- 
tribute for  the  whole  of  her  value  and  freight,  [h)  They  also  declare,  that  the 
value  of  the  ship  shall  be  that  which  she  was  worth  Avhen  she  arrived ;  and 
that  from  the  freight  a  deduction  shall  be  made  of  the  men's  wages,  pilotatre, 
and  such  other  charges,  as  come  under  the  name  of  petty  average,  of  Avhich  it 
is  customary  everywhere,  for  the  cargo  to  bear  two-thirds,  and  the  ship  one.  (c) 

It  was  held  in  Da  Costa  v.  Neitmham.,  {d)  that  freight  must  contribute  to 
the  general  average.  And  the  whole  of  the  freight  payable  on  the  voyage  is  to 
be  brought  into  the  contribution,  for  that  was  in  hazard  at  the  time  the  sacrifice 
was  made,  which  reduced  the  general  average.  And  therefore,  in  the  case  of 
TVilliams  v.  London  Assurance  Company,  (e)  where  a  ship  was  chartered 
from  London  to  the  East  Indies,  there  to  deliver  her  outward  cargo,  and  to 

(a)  Do  leg.  Rhod.  s.  2,  art.  8;  Oler.  art.  8;  Wisb.  art.  20;  Molloy,  I.  2,  c.  6,  s.  4. 
(i)    I  Mag.  63.  (c)   1  Mag.  71. 

{d)   1  Mag.  69.  (a)  Ord.  of  Genoa  and  France. 

(b)  2  Mag.  207,  237,  339. 

(c)  See  Stevens  on  Aver.  51,  5.),  where  he  says,  "That  mode  of  calculation  appears  to 
be  the  best  which  approximates  the  nearest  to  the  value  of  the  ship  when  she  sailed,  after 
deducting  the  provisions  and  the  stores  expended,  the  wear  and  tear  of  the  voyage,  and  any- 
average  loss  by  sea  damage  incurred  up  to  the  time  when  the  general  average  loss  took 
place." 

{d)  2  T.  R.  407.  Freight  contributes  according  to  its  full  amount,  a  deduction  of  sea- 
men's wages  and  other  expenses  of  the  voyage  being  first  made.  Abb.  447.  But  see 
•Stevens,  p.  60,  where  that  learned  writer  seems  to  consider  that  the  provisions  expended 
ought  to  be  deducted  from  the  original  value  of  the  ship,  and  not  from  the  freight. 

(e)  1  M.  «St  S.  318.  And  see  6  Rob.  Ad.  Rep.  90;  1  Edw.  Ad.  Rep.  223.  Cox  v. 
May,  4  M.  &  S.  151. 


290  GENERAL    AVERAGE. 

return  from  thence  with  a  cargo  for  England,  into  the  river  Thames,  and  there 
f.  ^.  „  .  -,  make  a  true  delivery,  and  it  was  agreed  that  the  *charterer.s  should, 
[  ''SS*  J  ^jp^j^  condition  that  the  ship  performed  her  voyage  and  arrived  m 
London,  and  not  otherwise,  pay  freight  for  every  ton  of  goods  that  should  be 
brought  home  at  so  much  per  ton,  and  an  average  loss  occurred  upon  tlie  ship's 
outward  voyage  :  but  afterwards  being  repaired,  completed  her  adventure, 
returned  back  to  London,  and  earned  freight,  in  an  action  brought  by  the  ship- 
owner on  a  policy  of  insurance  for  the  outward  voyage,  the  underwriters  were 
allowed  to  deduct  the  amount  of  a  general  average  on  the  freight. 

5.  The  sea  laws  of  different  countries  vary  no  less  than  upon  the  former 
question,  in  fixing  at  what  prices  goods  thrown  overboard  shall  be  estimated, 
and  for  what  value  those  saved  are  to  contribute. 

By  the  ordinances  of  Rotterdam,  Stockholm,  and  Copenhagen,  if  the  acci- 
dent' wliich  occasioned  the  general  average,  liappencd  before  half  tlie  voyage 
was  performed,  the  jettison  was  to  be  estimated  at  prime  cost;  but  if  after  that 
period,  then  at  the  price  for  which  such  goods  would  sell,  at  the  place  of  dis- 
charge, freight,  duties,  and  ordinary  charges  deducted.  («)  That  distinction  is 
now^  however  exploded  in  England,  and  the  custom  lias  become  general  of 
estimating  the  goods  saved  and  lost,  at  the  price  for  which  the  goods  saved  were 
sold,  freight  and  all  other  charges  being  first  deducted,  [b)  This  rule  is  agree- 
able to  the  marine  laws  of  Wisbity,  (f)  which  declare,  that  the  goods  thrown 
overboard  shall  be  brought  into  a  gross  average,  and  shall  be  rated  at  the  same 
price  for  which  other  merchandise  of  the  same  sort  preserved  from  the  sea  or 
enemy,  was  sold.  This  custom  mentioned  by  Molloy  was  certainly  new  in 
England  at  the  time  he  wrote:  for  it  appears  by  Malyne,  that  in  1622,  the 
distinction  was  observed  of  estimating  the  goods  at  prime  cost,  if  the  jettison 
happened  before  half  the  voyage  was  performed ;  and  if  after,  at  the  price  the 
.  _  -,  rest  of  the  goods  *sold  for  at  the  place  of  discharge,  {a)  How- 
L  "^25  J  g^^g^^  Molloy  is  a  more  modern  autliority ;  and  Magem  says,  that 
the  prevailing  mode  of  settling  averages  now  adopted  in  England  is  conform- 
able to  that  rule,  which  has  abolished  the  distinction,  [b] 

Gold,  silver,  and  jewels,  at  most  places,  contribute  to  a  general  average, 
according  to  their  full  value,  and  in  the  same  manner  as  any  other  species  of 
merchandise.  It  has  been  said,  Uiat  an  immemorial  custom  has  prevailed  at 
Amsterdam,  that  gold  and  silver  shall  only  contribute  for  half  their  value  :  the 
reason  for  such  a  custom,  one  is  at  a  loss  to  conjecture,  (c)  In  England  no 
such  custom  prevails ;  but  money  and  jewels  must  fall  into  the  general  average 
at  their  full  price :  and  a  modern  writer  assures  us,  that  the  practice  was  such 
in  I^ondon  when  he  wrote ;  and  such  I  believe  it  to  be  at  this  day.  {d) 

In  a  case  of  Peters  v.  Millgan,  (e)  the  doctrine  here  advanced  was  men- 
tioned and  confirmed  by  Mr.  Justice  Buller,  as  clear  law. 

III.  The  contribution  is  in  general  not  made  till  the  ship  arrive  at  the  place 
of  delivery:  but  accidents  may  happen,  which  may  cause  a  contribution  before 
she  reach  her  destined  port.  Thus  when  a  vessel  has  been  obliged  to  make  a 
jettison,  or,  by  the  damages  suffered  soon  after  sailing,  is  obliged  to  return  to 
her  port  of  discharge ;  the  necessary  charges  of  her  repairs,  and  the  replacing 
the  goods  thrown  overboard,  may  then  be  setded  by  a  general  average.  (/) 

(a)  2  Mag.  100,  285,  339.  (b)  Molloy,  tit.  Avr.  s.  15. 

(c)  Leg.  Wisb.  art.  20. 

(a)  Malyne  Lex  Merc.  1st  part,  c.  26.     Park  Ins.  296. 

(i)  See  Richardson  v.  Nourse,  3  B.  &  A.  237;  Stevens,  45. 

(c)   1  Mag.  62.  ((/)  Molloy,  tit.  Average,  s.  4 ;  1  Mag.  62. 

(e)  Sit.  at  Guildhall  after  Mich.  1787.     Park  Ins.  296. 

(/)  Roccus  de  Navibus,  Not.  96 ;  1  Mag.  60. 


GENERAL   AVERAGE.  291 

1.  It  is  clear  that  in  making  contribution  the  value  of  the  goods  thrown  over- 
board is  to  be  included  in  the  value  of  the  whole  that  is  to  contribute,  otherwise 
the  proprietors  of  those  goods  will  receive  the  full  value  without  contributing 
anything  *to  the  loss.  The  late  Lord  Tenterden,  in  his  Treatise  r-  «f-o/>  -, 
on  the  Law  of  ^'■Merchant  Ships  and  Seamen,''''  has  inserted  an  •-  -' 
example  in  figures  by  which,  as  he  very  properly  observes,  the  principle  of 
the  mode  of  contribution  can  be  more  easily  illustrated,  (o) 

It  only  remains  now  to  state,  that  the  insurers  are  liable  to  pay  the  insured 
for  all  expenses  arising  from  general  average,  in  proportion  to  the  sums  they 
have  underwritten.  Roccus  says,  "Jactu  facto,  ob  maris  tempestatem,  pro 
sublevanda  navi,  an  teneantur  assecuratores  ad  solvendum  estimationem  rerum 
jactarum  domino  ipsarum.''  Die  eos  non  teneri,  quia  pro  rebus  jactis  fit  con- 
tributio  inter  omnes  merces  habentes  in  ilia  navi  pro  solvendo  pretio  domino 
ipsarum,  et  idco  si  assecuratus  recuperat  pretium  rerum  jactarum,  non  potest 
agere  contra  assecuratores ;  tamen  tenentur  assecuratores  ad  reficiendum  illam 
ratam  et  portionem,  quam  solvit  assecuratus  in  illam  contributioneni  faciendo 
inter  omnes,  habentes  merces  in  ilia  navi  quse  portio  cum  non  recuperetur  ab 
aliis,  habetur  pro  deperdita,  et  proinde  ad  illam  portionem  tenentur  assecu- 
ratores." [b] 

The  opinion  of  this  learned  civilian  is  agreeable  to  the  laws  of  all  the  trading 
powers  on  the  continent  of  Europe,  as  well  as  to  those  of  England,  where 
the  insurer,  by  his  contract,  engages  to  indemnify  against  all  losses  arising  from 
a  general  average. 

2.  With  respect  to  the  payments  of  the  contributions  to  a  general  average, 
it  is  usual  in  this  country  for  the  brokers  who  have  procured  the  policy  of 
insurance  to  be  efl^ected,  to  draw  up  an  adjustment  of  the  average  which  the 
underwriters  usually  pay  in  the  first  instance  without  any  dispute.  But  in  case 
of  dispute  the  law  provides  a  remedy  for  and  against  each  party  to  the  contri- 
bution. 

In  the  case  of  an  expenditure  of  money,  probably  an  action  for  money  paid 
might  be  maintained  against  each  of  those  *who  were  benefited  by  r-  ^^-nyy  -i 
such  expenditure.      But  as  this  would  lead  to  a  multiplicity  of  L  -J 

actions  ;  and  this  species  of  action  is  not  applicable  to  the  case  of  goods  thrown 
overboard,  the  better  mode  in  all  cases  seems  to  be  to  apply  for  contribution  to 
a  Court  of  Equity,  where  effectual  relief  may  be  obtained  against  all  the  parties 
in  one  suit,  (o)  ' 

In  Birkley  v.  Presgrave,  {b)  it  was  decided  that  a  special  action  of  assump- 
sit may  be  maintained  by  the  owner  of  a  ship  against  the  owner  of  part  of  the 
cargo,  to  recover  from  him  his  proportion  of  a  general  average  loss,  incurred 
by  cutting  the  cable  and  part  of  the  tackle  of  the  ship,  and  applying  them  to  a 
use,  for  which,  they  were  not  originally  intended,  for  the  general  preservation 
of  the  whole  concern. 

And  in  the  case  of  Dohson  and  others  v.  JVilson,  (c)  it  was  held  by  Lord 
Ellenborough  that  a  similar  action  might  be  held  by  one  shipper  of  goods 
against  another. 

3.  By  the  maritime  laws  and  usages  of  all  nations  the  place  of  the  ship's 
destination  or  delivery  of  her  cargo  is  the  place  at  which  the  average  is  to  be 
adjusted,  and  the  master  is  not  compellable  to  part  with  the  possession  of  the 


(a)  The  reader  is  referred  to  the  note  in  question,  Abb.  6th  edit.  p.  449. 
(6)  Roccus  de  Assecurationibus,  Not.  62. 

((z)  Com.  Dig.  tit.  Chancery,  (2,  1,)  and  Shower's  Pari.  Cas.  and  see  the  judgment  of 
Lord  Ellenborough  in  Dobson  v.  Wilson,  3  Camp.  480 ;  see  ante,  p.  505,  case  of  Milward 
V.  Hibbert. 

(b)  1  East,  220.  (c)  3  Camp.  480. 


292  THE    ASSURERS,  ETC. 

goods  until  the  sum  contributable  in  respect  to  them  is  either  paid  or  secured 
to  him.  (d)  It  would,  therefore,  seem  to  follow  as  a  natural  consequence  that 
if  the  average  is  to  be  adjusted  at  the  place  of  destination  the  adjustment  must 
be  made  conformably  with  the  law  of  that  place.  And  it  has  been  decided, 
therefore,  in  the  case  of  Simond  and  Loder  v.  White,  (e)  that  where  the  pro- 
prietors of  goods  were  compelled  at  Petersburg  to  pay  a  sum  of  money  to  the 
shipowner  as  a  contribution  to  a  general  average,  settled  at  Petersburg  according 
r  spi^ft  1  ^^  ^^^^  ^^^^  °^  Russia.,  *in  order  to  recover  possession  of  their  goods, 
L  J  they  could  not  recover  back  again  so  much  of  the  money  paid  as 

would  not  have  been  charged  to  them  on  an  adjustment  of  average  according  to 
the  law  of  England^  the  ship  being  a  British  ship  and  all  the  parties  British 
subjects. 


SECTION  XVII. 


THE    ASSURERS,    ETC. 


Having  in  the  fifteenth  section  of  this  Treatise  considered  the  effect  which  the 
term  "  unless  general"  has  upon  the  memorandum,  by  which  the  underwriters 
exempt  themselves,  in  the  case  of  some  articles,  altogether  from  the  payment 
of  average  losses,  in  others  unless  the  losses  amount  to  five  per  cent,  and  in 
all  others  not  mentioned,  and,  with  respect  to  the  ship  and  freight,  unless 
amounting  to  three  per  cent.,  with  this  general  exception  overriding  the  whole 
memorandum,  viz :  "unless  general,"  or  "the  ship  be  stranded;"  and  having 
also  in  the  preceding  section  treated  of  "general  average,"  as  to  its  real  nature 
and  character  as  a  most  ancient  rule  and  principle  of  frequent  and  most  useful 
application  in  marine  affairs  at  the  present  day,  I  come  now  to  treat  the  last 
sentence  in  the  policy  itself,  which  was,  we  recollect,  for  certain  reasons  alleged, 
postponed  till  after  the  memorandum  was  discussed,  though  the  sentence  we 
are  about  to  refer  to  is  properly  the  last  sentence  of  importance  in  the  policy 
immediately  followed  by  the  subscription  of  the  underwriters;  whilst  the  memo- 
randum, though  affecting  the  whole  policy,  scarcely  can  be  called  part  of  it, 
and  might  be  omitted  altogether,  without  interfering  with  the  contract  between 
the  parties,  any  more  than  with  respect  to  the  limitation  of  the  underwriters' 
liabilities  in  cases  of  average  losses,  except  upon  two  conditions.  This  sentence 
is  in  the  following  words: — "And  it  is  agreed  by  us,  the  assurers,  that  this 
r  *fi2Q  1  ^^^i'i"&  *3^  policy  of  assurance  shall  be  of  as  much  force  and  effect 
'-  -"as  *the  surest  writing  or  policy  of  assurance  heretofore  made  in 

Lombard  Street,  or  in  the  Royal  Exchange,  or  elsewhere  in  London.  And 
so  we,  the  assurers,  are  contented,  and  hereby  promise  and  bind  ourselves, 
each  one  for  his  own  part,  our  heirs,  executors,  and  goods,  to  the  assureds, 
their  executors,  administrators,  and  assigns,  for  the  true  performance  of  the 
premises,  confessing  ourselves  paid  the  consideration  due  unto  us  for  this 
assurance  by  the  assured,  at  and  after  the  rate  of  (the  premium,  so  much  per 
cent. )     In  witness  whereof  we,  the  assurers,  have  subscribed  our  names,  and 


{d)  1  Consulat  de  la  Mer,  s.  225;  Complete  Body  of  Sea  Iiaws,  s.  33,  art.  31;  Well- 
wood,  tit.  21,  p.  47;  Bynkershoek  Questiones  Juris  Privati,  lib.  4,  c.  24;  Malyne's  Lex 
Mercatoria,  3rd  edit.  1 13;  Beawes,  245;  Ordinance  of  Louis  XIV.  book  3,  tit.  8;  Du  Jet, 
art.  21;  Abb.  on  Shipp.  6th  edit.  451. 

(e)  2  B.  «fe  C.  805. 


THE    ASSURERS,   ETC.  293 

sums  assured,  in  London.^''  This  is  necessary,  of  course,  for  the  protection 
of  the  assured,  and,  as  we  before  observed,  the  policy  is  signed  only  by  the 
underwriters.  But  it  is  to  be  recollected  that  they,  in  the  policy  itself  to  which 
their  names  are  affixed,  "confess  themselves  paid  the  consideration  due  unto 
them  for  this  assurance  by  the  assured,  at  and  after  the  rate  of  (  ;")  and 
therefore  a  court  of  law,  or  of  equity,  will  bind  them  to  their  bargain.  The 
poHcy  becomes  the  property  of  the  assured,  and  he  may  maintain  an  action 
for  it  against  any  person  wrongfully  withholding  it,  either  the  broker,  or  any 
party  into  whose  hands  it  may  have  got;  but  the  broker  (as  we  shall  presently 
see)  has  a  lien  on  the  policy  for  advances. 

Lord  Mansfichl,  in  a  case  of  Harding  v.  Carter  and  another^  [a)  reported 
in  the  late  Mr.  J,  Parkas  Treatise,  very  early  laid  the  law  down  in  favour  of 
the  assured.  The  action  of  trover  was  brought  by  the  plaintiff  (a  captain  of  a 
ship)  against  the  defendants,  who  were  brokers,  for  two  policies  of  assurance. 
The  defendants  wrote  to  the  plaintiff  that  they  had  had  two  policies  made,  the 
one  on  the  plaintiff's  "clothes  and  wages,"  the  other  on  the  account  of  the 
"owners,"  and  that  the  underwriter  was  Mr.  Newnham.  A  loss  having  hap- 
pened, the  defendants  produced  a  policy,  underwritten  by  one  T.  S.,  only  insur- 
ing the  ship,  in  which  the  plaintiff  had  no  interest.  Lord  Mansfield. — "I  shall 
consider  the  *defendants  as  the  actual  assurers,  and  therefore  the  p  *rLOA  n 
plaintiff  must  prove  his  interest  and  loss."     The  defence  set  up  L  -^ 

was,  that  the  letter  above  stated  in  evidence  was  written  by  the  defendant's 
clerk,  by  mistake ;  and  it  was  said  that  trover  could  not  be  maintained  for  that 
which  never  existed ;  but  his  Lordship  would  not  suffer  the  defendants  now  to 
contradict  their  own  representation ;  and  the  plaintiff  accordingly  had  a  verdict 
to  the  amount  of  his  interest,  the  premium  being  deducted. 

In  the  beginning  of  this  Treatise,  I  mentioned  who  might,  by  law,  be  the 
assured.  I  shall  now  briefly  state  who  may  be  the  assurers.  It  seems  that  at 
the  common  law,  and  by  the  usage  of  merchants,  any  person  whatever  might 
be  an  assurer,  however  unable  he  might  be  from  poverty  to  make  up  the  losses 
insured,  provided  the  merchant  Avas  weak  enough  to  trust  to  such  a  security. 
In  process  of  time,  however,  there  were  so  many  who  made  a  great  show  of 
wealth,  in  order  to  deceive  the  honest  and  unsuspicious  trader  out  of  his  pre- 
mium, that  it  became  an  object  of  national  and  Parliamentary  interference. 
And  by  the  statute  6  Geo.  1,  c.  18,  the  king  was  empowered  to  found  two 
chartered  companies,  viz:  "  TVte  Royal  Exchange  Assurance  Company,^^ 
and  ^^ London  Assurance  Company,''''  for  making  marine  insurances,  and  for 
lending  money  on  bottomry ;  and,  by  the  12th  section  of  the  act,  a  monopoly 
was  given  them,  in  exclusion  of  all  other  corporations  or  partnerships,  all  poli- 
cies made  by  which  were  declared  to  be  void,  and  the  parties  to  them  liable  to 
the  penalties  of  usury.  Individual  persons,  however,  might  underwrite  policies 
or  lend  on  bottomry,  if  not  on  account  of  a  corporation  or  partnership.  And, 
by  the  26th  section,  the  '■'■South  Sea  Company, ^^  and  "  TVte  East  India 
Company,''''  were  also  allowed  to  lend  on  bottomry,  with  regard  to  ships  and 
goods  in  their  service.  The  privilege,  however,  thus  given  to  these  two  com- 
panies, in  exclusion  of  all  other  corporations  and  partnerships,  is  now  taken 
away  by  5  Geo.  4,  c.  114;  by  the  second  section,  however,  of  this  act  it  is 
provided  that  nothing  in  that  act  should  affect  the  rights  and  privi-  p  ^,,„,  -> 
leges  *of  the  two  corporations,  otherwise  than  by  making  it  lawful  L  J 

for  other  corporations  and  bodies  politic,  and  persons  acting  in  partnership,  to 
grant  and  make  policies  of  insurance,  and  contracts  of  bottomry  Insurances 
may,  therefore,  at  this  day  be  made  by  private  individuals,  and  by  partnerships 


(a)  Sit.  at  Guildhall,  Easter  Vacation,  1781.     Park  Ins.  p.  5. 


294  THE    ASSURERS,   ETC. 

or  companies,  with  or  witliout  charters,  without  any  restriction.  The  com- 
panies who  have  in  recent  years  come  into  existence  in  consequence  of  this 
enactment,  it  may  easily  be  imagined,  are  extremely  numerous  both  in  Eng- 
land, Scotland,  and  Ireland;  it  would  be  useless  for  me  to  mention  their 
names,  a  great  number  of  them,  however,  will  be  found  to  be  parties  in  many 
of  the  recent  cases  referred  to  by  me.  I,  however,  shall  just  refer  to  the 
ancient  chartered  companies  of  "  The  Royal  Exchange  .Assurance  Com- 
pany,^'' and  that  of  the  '-^London  Assurance  Company. ^^ 

1.  The  Company  of  the  London  Jismirance,  whose  policies  were  nearly 
the  same  as  those  of  the  Roycd  Exchange  Company,  have  now  adopted  the 
following  memorandum,  more  analogous  to  that  of  the  private  assurers,  as  it 
re-establishes  the  exception,  which  they  had  discontinued,  in  the  "case  of 
stranding :"  (o) — "Free  from  all  average  on  rice,  corn,  flour,  fish,  salt,  salt- 
petre, fruit,  and  seeds,  except  general,  or  the  ship  be  stranded;"  "free  from 
average  on  sugar,  rum,  hides,  skins,  hemp,  flax,  and  tobacco,  under  five  pounds 
per  cent. ;  and  on  all  other  goods,  the  freight,  and  ship,  under  three  pounds 
per  cent.,  except  general,  or  the  ship  be  stranded." 

2.  The  Royal  Exchange  Company,  which  is  remarkable  for  the  following 
memorandum,  which  does  not  contain  the  words,  "unless  the  ship  be  strand- 
ed :" — "Free  from  all  average  on  corn,  flour,  fish,  salt,  fruit,  seeds,  hides,  and 
tobacco,  unless  general,  or  otherwise  specially  agreed. 

r  *532  1  "Free  from  average  on  sugar,  rum,  skins,  hemp,  and  flax, 
L  -^  *under  five  per  cent.  ;  and  on  all  other  goods,  and  on  the  ship, 

under  three  per  cent.,  unless  general." 

3.  Of  the  private  assurers,  it  is  hardly  necessary  I  should  mention  the  society 
of  underwriters  at  Lloyd's,  who  assemble  together  in  a  large  room  in  the  Royal 
Exchange.  These  underwriters,  though  quite  independent  of  each  other, 
have  rules  and  regulations  which  are  binding  for  the  most  part  upon  them  all ; 
they  have  a  list  of  every  registered  British  ship  certainly,  with  the  class  to 
which  it  belongs ;  they  have  agents  all  over  the  world ;  they  have  daily  ac- 
counts from  all  parts  of  the  globe  relating  to  ships,  the  accidents  which  have 
happened  to  them,  accounts  respecting  their  arrival  at  their  ports  of  destination, 
of  the  times  of  their  setting  sail  on  their  different  voyages,  of  their  being  missino^ 
and  not  heard  of,  and  of  every  thing  relating  to  the  ships  which  are  dispersed 
over  the  world,  which  may  (by  possibflity)  interest  and  afiect  their  concerns. 
They  are  a  highly  honourable  and  Avealthy  set  of  persons.  There  are  also 
underwriters  residing  in  the  large  sea- port  towns  in  Great  Britain,  such  as 
Liverpool,  Bristol,  Edinburgh,  Dublin,  and  others. 

And  I  must  now  mention  another  class  of  men,  viz :  the  insurance  brokers, 
who,  in  fact,  are  the  agents  who  actually  make  for  the  merchants,  their  prin- 
cipals, the  insurances  with  the  underwriters.  They  are,  as  well  as  the  under- 
writers, a  most  respectable  class  of  persons,  and  extremely  useful  to  merchants 
living  at  a  distance  from  London.  And  in  this  section  I  propose,  first,  to  con- 
sider what  are  the  rights  and  duties  of  the  insurance  broker,  and  also  in  what 
manner  the  setflement  of  accounts  between  them,  the  underwriters,  and  the 
assured,  in  point  of  practice,  really  takes  place.  And  in  this  section  the  set- 
tlement which  I  allude  to,  is  that  amicable  arrangement  between  the  assured 
and  the  underwriters,  by  which  the  losses  are  paid  after  they  have  been 
adjusted;  in  a  furflier  part  of  this  Treatise  it  will,  unfortunately,  be  necessary 


(«)  See  ante,  p.  49G,  the  account  given  by  Sir  F.  Norton,  in  his  argument,  3  Burr. 
1553,  of  the  Company  having  given  up  the  use  of  that  part  of  the  memorandum  relating  to 
the  stranding  "of  the  ship"  after  having  been  defeated  in  an  action  of  Cantillon  v,  the 
Company. 


THE    ASSURERS,   ETC.  295 

to  point  out  by  what  form  of  legal  proceeding  either  party  must  adopt,  in  order 
to  obtain  a  proper  redress  for  what  *tliey  may  consider  the  wrongs  r-    ^___ 
and  grievances  they  have  received  from  the  other  party.  L      ^'^^     J 

Policies  of  insurance  are  seldom  made  by  die  party  himself  really  interested, 
but  generally  by  die  intervention  of  an  agent  employed  by  the  assured,  called 
an  insurance  broker,  who  transacts  the  business  with  the  underwriters  as  attor- 
ney for  his  principal,  from  whom  he  receives  his  instructions,  which  if  he  do 
not  obey,  and  from  whicli  if  he  deviate,  he  is  answerable  to  his  employer  in  an 
action  like  any  other  person  who  undertakes  any  office,  employment,  trust,  or 
duty,  and  who  thereliy  impliedly  undertakes  to  perform  it  with  integrity,  dili- 
gence, and  skill,  Delany  v.  Stoddart.  (a)  Insurance  brokers  are  a  class  of 
persons  who  may  be  properly  enough  designated  as  the  goers-between  the  mer- 
chant making  insurances  and  the  underwriters  who  subscribe  the  policies.  As 
many  of  the  former  reside  abroad,  or  in  remote  parts  of  JSna;hind,  and  may  be 
supposed,  frequendy,  not  even  to  be  known  to  the  underwriters,  the  brokers 
who  make  the  insurances  for  them  in  London,  must  be  considered  as  a  very 
useful  class  of  agents,  and  are,  in  some  respects,  invested  with  a  superior 
degree  of  authority  than  agents  in  general  are.  They  are  likewise  persons  of 
great  respectability  and  honour,  and  to  whom  tlie  merchant  is  able  to  look  with 
confidence  for  a  proper  performance  of  his  duty,  and  for  the  selection  of  accre- 
dited and  responsil)le  underwriters  to  subscribe  the  policy. 

When  a  merchant  abroad  consigns  goods  to  another  in  this  country,  giving 
instructions  to  the  consignee  to  make  insurances  upon  the  cargo,  the  proper  and 
usual  plan  is  for  the  merchant  here  to  apply  to  a  broker  who  is  personally 
acquainted  widi  the  underwriters,  and  who  gets  the  insurance  made  by  them, 
thus  dividing  the  risk  amongst  a  number  of  responsible  persons.  It  need, 
therefore,  hardly  be  remarked,  that  if  the  merchant  at  home,  instead  of  pro- 
ceeding in  diis  manner,  were  to  take  the  risk  upon  himself,  without  ^  ^,_„^  -, 
the  ^knowledge  and  consent  of  his  correspondent,  and  debit  him  L  '  *''*  J 
with  the  amount  of  premium,  he  would  be  guilty  of  gross  misconduct,  and 
that  in  the  event  of  a  loss,  he  would  not  only  be  liable  to  the  consignor,  but 
that  the  premium,  having  been  received  by  him  without  a  consideration,  might 
be  recovered  back.  I  would  not,  however,  by  the  above  observations,  be 
construed  to  insinuate  that  a  practice  of  this  description,  illegal  and  dishonest 
as  it  would  be,  obtains  at  all  in  this  country,  the  acknowledged  integrity  and 
honour  of  whose  merchants  are  so  well  established  over  the  whole  world. 
There  would  likewise  be  this  obvious  objection  to  tlie  consignee  becomino-  the 
insurer  himself,  as  having  the  cargo  consigned  to  him,  and  consequently  the 
control  of  it,  he  has  die  opportunity,  in  taking  it  out  of  the  ship,  of  making  the 
nature  of  an  average  loss  appear  different  from  that  wliich  it  is,  in  fact,  so  as  to 
keep  it  out  of  the  exception  of  the  common  memorandum. 

The  insurance  broker  is  agent  both  for  the  assured  and  for  the  underwriter. 
His  duty  to  the  assured,  besides  in  pursuing  his  instructions  and  exercising  due 
care  and  diligence  in  effecting  the  policy,  consists  in  his  receiving  from  the 
underwriter  the  proceeds  of  a  setdement  of  a  loss,  and  his  duty  to  the  under- 
writer is  to  pay  them,  when  received,  to  the  assured,  Russel  v.  Bangley.  [b) 
I  propose  to  consider,  in  the  first  place,  what  are  the  rights  and  duties  of  the 
insurance  broker;  and,  in  the  second  place,  I  shall  consider  the  general  ques- 
tion of  the  setdement  of  accounts  between  the  broker,  the  underwriter,  and  the 
assured,  in  which  question  will  be  involved  the  respective  rights  and  liabilities 
of  the  several  parties  to  each  odrer. 

I.   First,  then,  we  will  consider  the  rights  and  duties  of  the  insurance  broker. 

(a)   I  T.  R.  22.  (6)  4  B.  «Se;  A.  398. 


296  THE    ASSURERS,  ETC. 

1.  The  insurance  broker  sometimes  acts  under  a  del  credere  commission, 
and  an  action  lies  against  the  assured  for  the  price  without  waiting  till  the  event 
is  determined,  Carruthers  v.  Graham,  [d] 

r  *'i'^'i  1  *As  the  broker  transacts  the  chief  part  of  the  business,  and  pays 
L  -^  the  premium,  the  law  gives  him  a  lien  upon  the  policy  in  his  hands 

without  any  notice  given  to  the  underwriters,  so  as  to  enable  him  to  deduct  not 
only  the  premium  and  commission  due  on  the  particular  policy,  but  the  general 
balance  due  to  him  on  the  account  between  him  and  his  principal,  Mann  v. 
Forrester,  (a)  And  this  is  so,  although  the  policy  be  not  made  on  account  of 
the  party  giving  him  the  orders,  for  if  he  have  no  notice  at  the  time  that  the 
policy  is  not  on  account  of  the  party  employing  him,  he  has  a  right  to  satisfy 
his  general  balance  out  of  money  received  on  the  policy  both  before  and  after 
notice  that  it  belongs  to  a  third  party,  for  he  must  be  supposed  to  have  made 
advances  on  the  credit  of  the  policy  which  was  allowed  to  remain  in  his  hands  : 
per  Lord  Ellenborough  in  Mann  v.  Forrester,  [b) 

And  it  has  been  decided,  that  if  a  broker  parts  with  the  possession  of  the 
policy  so  as  to  lose  his  lien  upon  it,  and  it  gets  back  again  into  his  hands,  for 
any  purpose  whatever,  the  lien  revives,  TVhitehead  v.  Vaughan.  (c) 

It  has  been  also  held  in  the  case  of  Falkner  v.  Case,  {d)  that  such  policies 
whilst  pledged  with  the  broker,  are  not  in  the  order  and  disposition  of  the 
bankrupt  assured  within  the  meaning  of  the  Bankrupt  Act,  although  no  notice 
is  given  to  the  underwriters. 

But  in  the  case  of  Maanss  v.  Henderson,  (e)  when  an  agent  made  a  policy 
in  his  own  name,  he  being  an  Englishman,  and  told  the  broker  that  the  pro- 
perty was  neutral,  and  to  warrant  it  as  such,  it  was  held  that  this  was  a  suffi- 
cient notification  to  the  broker  that  the  party  acted  only  as  agent:  and,  therefore, 
in  an  action  against  tlie  broker  by  the  foreign  principal,  it  was  held  that  the 
broker  could  only  set  off'  the  money  due  for  the  particular  premium,  and  not 
the  general  balance  due  from  the  English  agent  to  him. 

r  *'i'^fi  1  *^'^  Hunter  v.  Leathley,  (a)  the  broker  who  made  the  policy 
L  J  was  called  as  a  witness  for  the  plaintiff",  and  required  to  produce 

the  policy  :  this  he  refused  to  do,  claiming  to  have  a  lien  on  it  for  the  premiums 
advanced  by  him.  But  it  appearing  that  he  had  been  served  with  a  siibpcena 
duces  tecum.  Lord  Tenterden  held  that  he  was  bound  to  produce  it,  inasmuch 
as  he  would  not  thereby  be  deprived  of  his  lien.  His  Lordship  said,  "if  we 
allowed  the  broker  to  withhold  the  policy  on  account  of  his  lien,  we  should 
permit  that  which  would  work  great  inconvenience,  and  we  should  enable 
brokers  to  assist  the  underwriters  in  defeating  the  just  claims  of  the  assured. 
We  do  not  by  this  decision  deprive  the  party  of  his  lien,  he  still  has  the  policy 
in  his  possession,  and  has  the  same  right  of  lien  as  before."  And  it  was  held, 
likewise,  that  although  he  had  a  lien  on  the  policy,  he  still  was  a  competent 
witness  at  the  trial  between  the  assured  and  the  underwriter. 

2.  It  has  been  observed,  that  an  action  will  lie  against  a  broker  for  either  not 
attending  to  the  orders  of  his  principal  in  effecting  an  insurance  when  required 
to  do  so,  or  for  being  guilty  of  remissness  in  the  execution  of  it.  When  a  man 
undertakes  either  by  an  implied,  or  an  express  promise,  to  do  a  thing  for 
another,  and  he  neglects  to  do  it,  or  does  it  unskillfully,  the  law  gives  the  per- 
son in  general  an  action  for  the  remedy.     And  this  is  the  case  with  respect  to 

(rf)  11  East,  578.  (a)   1 1  Camp.  60. 

lb)  4  Camp.  60. 

(c)  T.  T.  25,  (Jeo.  3,  and  Parker  v.  Carter,  Trin.  Term.  1788,  which  cases  are  in  Mr. 
Cooke's  Book  on  Bankruptcy. 

{d)  Cited  in  Lempriere  v.  Pasley,  2  T,  R.  491. 

(e)   1  East,  .335.  (a)   10  B.  &  C.  858. 


THE    ASSURERS,   ETC.  297 

an  insurance  broker;  and  the  only  dificrence  between  the  action  against  him 
and  that  on  the  pohcy  against  tlie  underwriters,  is  in  point  of  form ;  for  the 
plaintiff  is  in  this  action  entitled  to  recover  from  the  broker  the  exact  sum  he 
ordered  to  be  insured;  and  the  defendant  is  entitled  to  every  benefit  of  which 
tlie  underwriter  could  have  taken  advantage,  such  as  fraud,  deviation,  non- 
compliance with  warranties,  and  the  like. 

In  the  case  of  Smith  v.  LasccUes^  [a)  the  whole  law  of  tliis  action  was  very 
fully  laid  down  by  Mr.  Justice  BuUer,  and  assented  to  by  the  whole  Court; 
and  upon  this  occasion  that*learned  Judge  mentioned  the  three  p  ?.r;o7  -i 
instances  in  which  such  an  order  to  insure  must  be  obeyed,  other-  ^  J 

wise  an  action  will  lie. 

First,  where  a  merchant  abroad  has  effects  in  the  hands  of  his  correspondent 
here,  he  has  a  right  to  expect  that  he  will  obey  an  order  to  insure,  because  he 
is  entided  to  call  his  money  out  of  the  other's  hands  when  and  in  what  manner 
he  pleases. 

The  second  class  of  cases  is,  where  the  merchant  abroad  has  no  effects  in 
the  hands  of  his  correspondent,  yet  if  the  course  of  dealing  between  them  is 
such,  that  the  one  has  been  used  to  send  orders  for  insurance,  and  the  other  to 
comply  with  them,  the  former  has  a  right  to  expect  that  his  orders  for  insu- 
rance will  still  be  obeyed,  unless  the  latter  give  him  notice  to  discontinue  that 
course  of  dealings. 

Thirdly,  if  the  merchant  abroad  sends  bills  of  lading  to  his  correspondent 
here,  he  may  engraft  on  them  an  order  to  insure,  as  the  implied  condition,  upon 
which  the  bills  of  ladings  shall  be  accepted,  which  the  other  must  obey,  if  he 
accept  them,  for  it  is  one  entire  transaction.  For  if  the  commission  from  abroad 
consists  of  two  parts,  the  one  to  accept  the  bill  of  lading,  die  other  to  cause  an 
insurance  to  be  made,  the  correspondent  cannot  accept  it  in  part,  and  reject  it 
as  to  the  rest. 

3.  But  it  was  held  in  the  case  of  Wilkinson  v.  Coverdale,  (b)  if  a  person, 
though  not  legally  obliged  to  comply  with  an  order  to  insure,  nevertheless 
accepts  it,  it  is  incumbent  on  him  to  carry  it  into  execution,  and  to  perform  it 
with  diligence  and  ordinary  skill,  or  he  will  be  liable  to  the  principal  for  the 
consequence  arising  from  his  unskillfulness  or  neglect. 

Thus  in  JVallace  v.  Telfair,  (c)  where  a  merchant  here  accepted  an  order 
for  insurance,  but  limited  the  broker  to  too  small  a  premium,  in  consequence  of 
which  no  insurance  could  be  procured,  it  was  held  that  he  was  liable  to  make 
good  the  loss  to  his  correspondent. 

*And  in  Sellar  v.  Work,  (d)  where  a  broker  employed  another,  r-  j^p-qo  -i 
but  omitted  to  give  him  all  the  instructions  he  was  furnished  with,  L  J 

it  was  held  that  he  was  liable  to  answer  for  the  loss  occasioned  by  his  omission, 
though  he  derived  no  profit  from  the  transaction. 

But  if  an  agent,  to  whom  insufficient  orders  are  sent,  does  all  that  is  usual 
to  get  the  insurance  made,  that  is  sufficient;  because  he  is  no  insurer,  and  is 
not  obliged  to  get  the  insurance  made  at  all  events,  (e) 

4.  In  the  case  of  Park  v.  Hammond,  [/)  where  a  broker  was  informed  that 
the  assured  would  take  upon  himself  the  risk  of  the  cargo  from  Malaga  to 
Gibraltar,  and  was  ordered  to  insure  from  Gibraltar  to  London,  and  neglected 
to  state  to  the  underwriters  that  the  goods  were  not  laden  at  Gibraltar,  inas- 
much as  this  omission  vacated  the  policy,  he  was  held  liable  to  the  assured  for 
this  neglect. 

(fl)  2T.  R.  187.  (i)   1  Esp.  75. 

(c)  2  T.  K.  188,  n.  (rf)  At  Nisi  Prius,  1801,  Marsh.  305. 

\e)  Smith  v.  Cologan,  2  T.  R.  188,  n.  (/)  2  Marsh.  189. 


298 

And  in  the  case  of  Mallony  v.  Barber^  (d)  where  an  insurance  broker  was 
instructed  to  make  a  policy  at  and  from  TencriJ/'e  to  London^  and  he  omitted 
to  insert  in  it  a  liberty  to  touch  and  stay  "at  all  or  any  of  the  Canary  Inlands,''* 
he  was  held  liable  for  that  negligence,  because  it  was  proved  that  that  liberty 
was  invariably  inserted  in  such  policies. 

And  in  Campbell  v.  Richards  and  others,  (e)  if  the  broker,  when  he  makes 
a  policy,  omits  to  state  any  circumstance,  wliich,  on  the  trial  between  the 
assured  and  the  underwriter,  would  constitute  a  sufficient  answer  for  the  latter, 
on  the  ground  of  there  having  been  a  material  concealment,  he  is  liable  in  an 
action  to  the  assured  for  this  omission.  And,  therefore,  where  a  merchant  at 
Sydney  shipped  goods  for  England  on  board  a  ship,  and,  by  another  ship  that 
sailed  after  her,  wrote  to  an  agent  in  England,  and  desired  him,  if  he  received 
r  ^'I'^Q  ~1  ^^^^  letter  before  the  ship  in  question  arrived,  to  *wait  thirty  days, 
L  -^  in  order  to  give  every  chance  for  her  arrival,  and  then  to  make  an 

insurance  on  the  goods :  and  the  letter  was  received,  and  the  agent,  having 
waited  more  than  thirty  days,  made  an  insurance  through  a  broker,  who  informed 
the  underwriters  when  the  ship  which  had  the  goods  on  board  sailed,  and  when 
the  letter  ordering  the  insurance  was  written,  but  did  not  state  when  it  was 
received,  nor  the  order  to  wait  thirty  days  after  the  receipt  of  it :  the  assured 
having  brought  an  action  on  the  policy,  and  failed  on  account  of  the  suppression 
of  the  above  facts  by  the  broker,  [a)  the  present  action  was  brought  against  the 
broker  for  negligence  in  making  the  policy.  It  was,  likewise,  held  in  this  case, 
that  though  the  opinion  of  l^rokers  and  underwriters  might  be  asked  as  to  mat- 
ters of  practice  in  their  profession,  they  could  not  be  called  to  speak  as  to  one 
of  the  points  upon  which  the  jury  would  have  to  give  their  verdict,  i.  c, 
whether  the  fact  concealed  was  material  or  not,  and  whether  it  ought  to  be  com- 
municated to  the  underwriters. 

In  Chapman  v.  JValton,  (b)  which  was  an  action  against  a  broker  for  negli- 
gence, where  the  defendant  having  made  policies  of  insurance  on  goods  for  one 
Richardson,  and  Richardson  having  received  a  letter  from  the  supercargo,  telling 
him  tliat  the  voyage  was  altered,  which  letter  Richardson  immediately  took  to 
the  defendant,  telling  him  "that  the  voyage  was  altered,  and  that  he  left  the 
letter  with  him  to  do  the  needful  with  it,"  it  was  held  that  brokers  might  be 
called  to  say,  looking  at  the  policies,  the  invoices  of  the  goods,  and  the  letter, 
what  alterations  in  the  policies  a  skillful  broker  ought  to  have  made. 

Tindal,  C.  J.,  said: — "It  is  objected  on  the  part  of  the  plaintiffs,  that  to 
allow  this  question  to  be  put  to  witnesses  is,  in  effect  and  substance,  to  allow 
them  to  be  asked  what  is  the  meaning  of  the  letter,  whereas  the  letter  ought  to 
r  *'i40  1  ^^  allowed  to  speak  for  itself;  or  if  there  be  any  doubt  upon  *the 
L  J  meaning  of  it,  it  ought  to  be  determined  by  the  Court  and  jury,  and 

not  by  the  evidence  of  insurance  brokers,  or  any  other  witnesses.  It  may  be 
admitted,  that  if  such  were  the  real  nature  of  the  question,  the  evidence  offered 
would  have  been  inadmissible.  But  we  think,  upon  reference  to  the  issue 
between  the  parties,  it  was  different.  The  action  is  brought  for  want  of  rea- 
sonable and  proper  care,  skill,  and  judgment,  shown  by  the  defendant,  under 
certain  circumstances,  in  the  exercise  of  his  employment  as  a  policy  broker. 
The  point,  therefore,  to  be  determined,  is  not  whether  the  defendant  arrived  at 
a  cori'ect  conclusion  upon  reading  the  letter,  but  Avhether,  upon  the  occasion  in 
•question,  he  did  or  did  not  exercise  a  reasonable  or  proper  care,  skill,  and 
judgment.     This  is  a  question  of  fact,  the  decision  of  which  appears  to  us  to 


(d)  4  Camp.  150.  (e)  5  B.  &  Ad.  840. 

(a)  See  Rickards  v.  Murdock,  10  B.  &,  C.  527,  and  Durrcll  v.  Bedesley,   Holt,  285, 
post.  (b)   10  Bing.  57. 


THE    ASSURERS,   ETC.  299 

rest  upon  this  further  inquiry,  viz  :  whether  other  persons,  exercising  the  same 
profession  or  calUng,  and  being  men  of  experience  and  skill  therein,  would  or 
would  not  have  come  to  the  same  conclusion  as  the  defendant.  For  the  defend- 
ant did  not  contract  that  he  would  bring  to  the  performance  of  his  duty,  on  this 
occasion,  an  extraordinary  degree  of  skill,  but  only  a  reasonaljle  and  ordinary 
proportion  of  it,  and  it  appears  to  us  that  it  is  not  only  an  unobjectionable 
mode,  but  the  most  satisfactory  mode  of  determining  this  question,  to  show  by 
evidence  whether  a  majority  of  skillful  and  experienced  brokers  would  have 
come  to  the  same  conclusion.  And  there  is  no  hardship  on  the  plaintiffs  by 
this  course  of  proceeding,  for  they  might  have  called  members  of  the  same 
profession  or  trade  to  prove  opposite  evidence,  and  the  jury  might  have  decided 
between  such  conflicting  testimony,  according  to  the  relative  skill  or  experience 
of  the  witnesses  on  either  side,  or  according  to  the  strength  of  the  reasons 
which  were  advanced  by  the  witnesses  in  support  of  their  respective  opinions." 

5.  In  the  case  of  Corlet  v.  Gordon^  (a)  it  was  held  that  an  agent  cannot 
delegate  his  authority  to  another,  and  therefore,  *^\vhen  a  merchant  p  *-±-\  "i 
in  this  country  receives  from  a  merchant  abroad,  with  whom  he  '-  -^ 
had  no  previous  connexion,  a  bill  of  lading,  inclosed  in  a  letter,  requesting  that 
an  insurance  might  be  made  on  the  goods,  and  the  merchant  declining  to  do 
business  for  the  consignor,  indorsed  the  bill  of  lading  to  a  person  who  was  his 
friend,  and  creditor,  who  received  the  goods,  and  afterwards  failed,  with  the 
proceeds  in  his  hands ;  it  was  held  that  the  merchant  who  had  his  election 
either  to  accept  or  reject  the  bill  of  ladino-,  but  was  bound,  if  he  accepted  it, 
to  complv  with  the  terms  of  the  consignment,  and  himself  to  insure  and  sell 
the  goods,  was  liable  for  the  consequences  arising  from  his  misconduct. 

6.  If  a  principal  give  instructions  to  an  agent  to  insure  upon  certain  terms, 
and  the  aofent  finds  that  he  is  not  able  to  effect  the  insurance  on  those  terms,  it 

O  .... 

would  seem  that  there  is  an  implied  duty,  requiring  him  to  give  notice  to  his 
principal  of  the  fact  in  order  that  the  latter  may  have  the  opportunity  of  getting 
the  policy  made  elsewhere,  or  of  acting  in  what  manner,  under  the  circum- 
stances, he  thinks  best :  and  if  the  agent  makes  the  insurance  on  terms  different 
to  those  required  of  him,  he  is  guilty  of  a  breach  of  duty. 

Thus,  in  the  case  of  Callandar  v.  Oclrichs,  (b)  where  the  plaintiff  who 
was  a  corn-dealer,  employed  the  defendants,  one  of  whom  resided  in  London, 
the  other  at  Baltimore,  as  agents,  to  dispose  of  a  cargo  of  wheat,  shipped  on 
his  account  from  London  to  Bullimore.  On  the  22nd  of  April,  the  wheat 
being  then  on  board,  the  defendants  received  from  the  plaintiff"  instructions  to 
make  an  insurance  on  the  wheat,  with  a  clause  declaring  it  subject  to  average 
above  10/.  The  defendants  (who  were  not  insurance  brokers,  and  did  not 
appear  to  have  made  any  policies  on  behalf  of  the  plaintiff)  in  a  letter  dated 
22nd  April,  acknowledged  the  receipt  of  the  plaintiff's  letter  of  the  22nd,  but 
took  no  notice  of  the  order  to  insure.  They,  however,  applied  at  two  offices, 
but  not  at  Lloyd's,  to  get  the  insurance  done,  but  in  consequence  p  ¥542  "I 
*of  the  vessel  being  E.  1,  they  were  unable  to  make  it  on  the  L  -" 

terms  mentioned  in  the  plaintiff's  letter.  Their  inability  to  get  a  policy  made 
pursuant  to  their  instructions,  was  not  communicated  to  the  plaintiff:  and  they 
subsequently  insured  upon  the  common  policy,  "free  from  average,  unless 
general,  or  the  ship  be  stranded."  Mr.  Justice  Colfman  left  it  to  the  jury  to 
say  whether  or  not  it  was  a  condition  to  be  implied  from  the  nature  of  the 
transaction,  that  the  defendants  should  give  notice  to  the  plaintiff  of  their  ina- 
bility to  make  the  insurance  on  the  terms  mentioned  in  the  plaintiff's  letter  of 
the  22nd  of  April.     The  jury  found  that  it  was,  and  returned  a  verdict  for  the 

(a)  3  Camp.  472.  (6)  6  Scott,  761,  5  B.  N.  C.  58. 


300  THE    ASSURERS,   ETC. 

plaint! (T.  A  rule  for  a  new  trial  having  been  obtained,  on  the  ground  that  it  did 
not  appear  there  had  been  any  express  undertaking  on  the  part  of  the  defend- 
ants to  give  the  plaintifT  notice;  it  was  argued,  on  the  part  of  the  defendants, 
that  although  where  the  contract  was  to  be  implied  from  a  course  of  dealing  or 
employment  between  the  parties,  it  was  competent  to  the  plaintiff  to  declare 
upon  it  according  to  its  legal  effect,  that  he  could  not  do  so  in  the  case  of  an 
express  mercantile  contract.  The  allegation  in  the  declaration  in  question  was 
the  following,  viz: — '•'that  the  defendants  undertook  and  faithfully  promised 
the  plaintiO'  to  use  due  and  reasonable  diligence  in  the  premises,  and  faithfully 
to  discharge  and  execute  their  duty  as  such  agents,  and  in  the  event  of  any 
difficulty  arising  in  making  such  insurance,  or  in  case  they  should  be  prevented 
making  such  insurance,  on  the  terms  aforesaid,  to  give  notice  thereof  to  the 
plaintilf  within  a  reasonalile  time." 

Tindal,  C.  J.— "I  am  of  opinion  that  the  rule  that  has  been  obtained  for  a 
new  trial  in  this  case  must  be  discharged.  The  question  arises  on  a  declara- 
tion upon  an  action  against  agents,  in  which  the  duty  of  the  agents  is  stated  to 
be  to  cause  certain  wheat  of  the  agents  to  be  insured  on  certain  terms,  or  in  the 
event  of  their  not  causing  the  same  to  be  so  insured,  to  give  notice  to  the  plain- 
tiff widiin  a  reasonable  time  that  they  had  not  done  so  :  and  the  breach  assigned 
r  *p»4.'i  1  ^^  ^'^^^  ^^^^  defendants,  disregarding  their  duty  as  such  agents,  *made 
L  J  an  insurance  upon  the  wheat  upon  terms  different  from  their  instruc- 

tions, and  omitted  to  give  the  plaintiff  notice  as  aforesaid,  whereby  the  plaintiff 
sustained  an  average  loss.  The  objection  is  that  there  was  no  evidence  given 
at  the  trial  of  any  promise  by  the  defendants  to  give  the  notice  stated  in  the 
declaration ;  and  the  question  is,  whether  this  part  of  the  promise  is  not  matter 
that  the  law  will  infer  from  the  general  duty  cast  on  the  defendants.  The  ques- 
tion is  whether  or  not  the  jjivin^  of  notice  is  a  leo-al  liability  resultinjr  from  the 
situation  of  the  parties.^  I  am  of  opinion  that  it  is.  The  defendants'  duty 
would  not  be  well  performed,  unless  they  communicated  to  the  plaintifl'  the 
fact  tliat  they  were  unable  to  make  the  insurance  upon  the  terms  proposed. 
See  the  situation  of  the  plaintiff;  the  failure  of  the  defendants  to  communicate 
to  him  the  terms  upon  which  alone  they  were  able  to  insure  the  wheat,  pre- 
vented him  from  getting  it  done  elsewhere,  which  possibly  he  might  have  suc- 
ceeded in  doing.  The  case  seems  to  me  to  fall  within  the  principle  of  Smith 
V.  Lascelles,  [a)  where  it  was  held  that  if  a  merchant  here  has  been  accus- 
tomed to  procure  insurances  for  his  correspondent  abroad,  in  the  usual  course 
of  trade,  the  latter  has  a  right  to  expect  an  insurance  at  the  hands  of  the  former, 
unless  notice  be  given  to  the  contrary."  The  rest  of  the  Court  concurred,  and 
the  rule  was  discharged. 

A  very  recent  and  important  case  on  this  subject  was  argued  in  the  Common 
Pleas,  Michaelmas  Term,  1842.  The  case  was  Tiirpin  v.  Bilfon.,  {b)  and 
was  an  action  on  the  case  against  the  defendant,  an  insurance  broker,  for  not 
making  an  insurance  according  to  his  undertaking.  The  declaration,  after 
stating  the  retainer  and  employment  of  the  defendant  to  cause  an  insurance  to 
be  made  on  the  plaintiff's  ship,  tackle,  &c.,  and  the  defendant's  acceptance  of 
such  retainer  and  employment,  alleged,  by  way  of  breach,  that,  althou£rh  a 
reasonable  time  had  long  before  the  commencement  of  this  suit  elapsed,  and 
r  *'i''4  1  before  the  loss  of  the  ship,  yet  the  defendant  *did  not,  nor  would, 
L  *  J  within  a  reasonable  time,  cause  to  be  made,  accordinof  to  the  cus- 
torn  of  merchants,  insurance  upon  the  said  ship,  tackle,  <fec.,  and  did  not,  nor 
would  cause  the  same  to  be  insured,  nor  cause  a  policy  of  insurance  to  be  made, 
subscribed,  and  underwritten  thereon,  from  and  against  the  perils  of  the  sea, 

(a)  2  T.  R.  185.  (b)   6  Scott.  N.  R.  447. 


301 

and  other  risks  usually  borne  by  underwriters,  nor  did  nor  would  cause  the 
plaintiff  to  be  insured,  in  respect  of  the  said  ship,  tackle,  &c.,  from  and  a<rainst 
the  perils  aforesaid  ;  nor  did  nor  would  cause  to  be  made  thereon  any  insurance, 
or  policies  of  insurance,  subscribed  or  underwritten  ;  but  the  defendant  so  to 
do  had  wrongfully,  and  in  breach  of  his  duty  and  retainer  and  acceptance  thereof, 
wholly  neglected  and  refused,  and  still  did  noirlect  and  refuse.  It  appeared  in 
evidence,  at  the  trial  of  the  cause  before  MauU,,  J.,  at  tlic  last  assizes  at  New- 
castle^ that  the  defendant  had,  shorUy  after  he  had  been  employed  to  do  so, 
contracted  with  the  Newcastle  Commercial  Inaurance  Company  for  an  insu- 
rance on  the  plaintilT's  sliip,  &c.,  and  shortly  afterwards  obtained  from  the 
secretary  of  the  company  what  purported  to  be  copies  of  the  policies.  Stamped 
policies  were  afterwards  subscribed,  but  not  given  out,  it  being  the  practice  of 
the  coiupany  to  retain  them  in  their  possession  till  wanted  in  consequence  of  a 
loss.  There  was  no  precise  evidence  as  to  the  time  when  the  stamped  policies 
were  executed,  the  evidence  being  that  it  was  usual  to  execute  them  very  shordy 
after  the  order.  To  a  demand  for  the  policies  on  the  part  of  tlie  jjlaintifr,  the 
defendant  sent  an  evasive  reply.  On  the  part  of  the  defendant,  it  was  insisted 
tliat  the  correspondence  that  was  given  in  evidence  amounted  to  an  admission 
on  the  plaintilT's  part  that  the  policies  had  been  made  shortly  after  the  order 
was  given,  and  that  the  evidence  as  to  the  usage  of  the  company  was  conclu- 
sive to  show  that  there  had  been  no  breach  of  duty  by  the  defendant.  On  the 
other  hand,  it  was  submitted,  that  the  inference  to  be  drawn  from  the  corres- 
pondence was,  that  there  were  no  policies  made.  The  learned  Judge  left  it  to 
the  jury  to  say  whether  or  not  the  defendant  had  procured  the  policies  to  be 
made  within  a  ^reasonable  time.  The  jury  returned  a  verdict  for  r-  ^  -  .  -  -i 
the  plainlilf  on  the  first  count,  damages  30/.  A  rule  nhi  for  a  new  L  ^^^  J 
trial,  or,  in  the  case  of  that  being  refused,  for  arresting  the  judgment.  The 
Court  took  time  to  consider;  and  in  Hilary  Vacation,  1843,  Chief  Justice  Tin- 
(lal  delivered  the  judgiuent  of  the  Court,  and,  after  detailing  the  allegation  in 
the  declaration,  and  the  evidence  given  in  the  case,  said,  "These  conflicting 
views  were  placed  before  the  jury,  who,  it  would  appear,  drew  their  conclusion 
in  favour  of  the  plaintifl":  and  my  brother  Maule,  who  tried  the  cause,  appears 
satisfied  with  their  finding.  A  second  prayer  of  the  motion  was,  that  the  judg- 
ment should  be  arrested.  And  the  objection  taken  in  arrest  of  judgment  is, 
that  the  duty  cast  upon  the  defendant  by  the  contract  into  which  he  entered 
was  not  an  absolute  duty,  as  alleged  in  the  declaration,  to  make  an  insurance 
at  all  events,  as  in  the  nature  of  a  warranty,  but  that  it  was  a  mandatum  only, 
and  that  the  defendant  was  bound  only  to  use  a  proper  degree  of  care  and  dili- 
gence to  perform  what  he  had  undertaken.  But  to  this  we  think  the  proper 
answer  has  been  given  at  the  Bar,  viz  :  that  the  action  is  founded  on  an  express 
contract,  and  that  the  breach  is  not  larger  than  the  terms  of  the  contract,  but 
is  framed  in  the  same  precise  terms ;  and  that  the  allegation,  that  the  defendant 
to  perform  his  promise,  'wrongfully,  and  in  breach  of  his  duty  and  retainer, 
and  of  his  acceptance  thereof,  wholly  ncsilected  and  refused,'  is  a  legal  charge 
on  the  face  of  the  declaration,  and  sufficient  to  call  on  the  defendant  for  an 
answer;  leaving  it  to  the  defendant,  if  he  thought  to  excuse  himself  on  the 
ground  of  impossibility  of  finding  persons  ready  or  willing  to  underwrite  the 
particular  risk,  or  on  any  other  justifiable  ground  of  excuse,  either  to  shew  it 
in  evidence  at  the  trial,  as  an  answer  to  the  breach  so  alleged,  or  to  plead  by 
way  of  excuse  as  he  should  be  advised."     Rule  discharged. 

If  the  neglect  complained  of  be  the  non-comiBunication  of  a  material  fact  to 
the  underwriters  in  making  the  insurance,  the  policy  was  avoided,  the  agent 
may  make  it  appear,  by  way  of  defence,  that  the  fact,  if  coiumunicated,  would 
have  made  *it  impossible  to  get  insurance  at  the  premium,  limit'd  r-  ^_^-  -, 
in  his  instruction.    Thus  a  shipowner  in  London  directed  a  broker  L      ^■*"     J 


302  THE    ASSURERS,  ETC. 

at  Hull  to  insure  a  ship,  then  on  a  voyage  from  London  to  Hull,  limiting  the 
premium  to  be  given,  and  communicating  the  day  of  the  ship's  sailing  from 
London.  The  broker  made  the  policy  without  any  delay,  but  concealed  tlie  day 
of  the  ship's  departure.  Upon  that  ground,  the  assured  having  been  nonsuited 
in  an  action  brought  upon  the  policy,  brought  another  action  against  the  broker 
for  neglecting  to  make  the  proper  communication,  in  whicli  the  latter  was  per- 
mitted to  show,  in  his  defence,  that  no  insurance  could  have  been  made  at  the 
limited  premium,  if  the  date  of  the  ships  departure  had  been  communicated, 
that  date  being  such  as  would  have  made  her  to  be  considered  as  a  "missing 
ship"  at  the  time  the  order  was  received,  {d) 

II.  I  shall  now  proceed,  in  the  second  place,  to  consider  what  are  the  respec- 
tive rights  and  liabilities  of  the  three  parties,  the  assured,  the  broker,  and  the 
underwriter  to  each  other,  and  in  what  mode,  when  a  loss  has  occurred,  a 
settlement  of  the  account  between  them  takes  place.  The  underwriter  has  to 
receive  his  premium,  the  broker  his  commission  for  making  the  insurance,  and, 
when  a  loss  has  occurred,  the  assured  has  to  receive  the  proceeds  of  the  setde- 
ment  of  the  loss. 

I  have  already  observed  that,  in  English  policies,  the  premium  is  always 
expressed  to  have  been  received  at  the  time  of  underwriting:  "we,  the  assu- 
rers, confessing  ourselves  paid  the  consideration  due  unto  us  for  this  assurance 
by  the  assured."  This  being  subscribed  by  the  underwriter,  it  is  proper  to 
inquire,  whether,  if  the  premium  were  not  actually  paid  at  the  time,  he  could 
afterwards  maintain  an  action  against  the  assured,  who  could  then  produce  his 
subscription  as  evidence  against  himself.  Mr.  J.  Park  says,  "that  there  is  an 
old  case  upon  the  subject,  which,  however,  is  not  at  all  satisfactory,  (e)  It  was 
r  *547  1  ^'^  action  of  assumpsit,  and  the  plaintiff  *declared  that  the  defend- 
L  J  ant  was  indebted  to  him  in  20/.  for  a  premium  of  insurance  on 

such  a  ship.  'J^he  defendant  demurred  specially,  because  the  plaintiff  did  not 
show  the  consideration  certainly  what  the  premium  was,  or  how  it  became 
due;  but  the  objection  was  not  allowed,  for  this  is  as  good  as  an  ^^indebitatus 
pro  quodam  salario"  which  has  been  adjudged  good.  Here,  however,  there 
is  no  decision  upon  the  merits,  nor  does  it  appear  whether  the  defendant  was 
the  broker  or  the  assured  himself.  In  practice,  however,  policies  are  made  by 
the  intervention  of  the  broker,  and  open  accounts  are  kept  between  the  under- 
writers and  brokers,  in  which  case  the  underwriter  may  have  an  action  against 
the  broker  for  premiums  received  to  his  use." 

This  acknowledgment  on  (he  face  of  the  policy  of  the  receipt  of  the  premium 
by  the  underwriter  is  conclusive  as  between  him  and  the  assured,  except  in  the 
case  of  fraud,  (a)  And,  therefore,  in  the  case  of  Dalzell  v.  Mair,  [b)  which 
was  an  action  for  money  had  and  received  brought  by  the  assured  against  the 
underwriter  for  a  return  of  premium,  the  underwriter  cannot  be  admitted  to 
say,  that  the  broker  who  made  the  policy  on  behalf  of  the  plaintiff  had  not 
paid  any  part  of  the  premium.  But  as  between  the  underwriter  and  broker 
the  receipt  is  no  bar  to  an  action.  This  was  decided  before  Lord  Mansfield 
in  the  case  oi  Airy  and  others,  Assignees,  Sfc,  v.  Bland,  (c) 


(d)  Anon.  cor.  Chambre,  J.,  York  Summer  Assizes,  1808.  This  case  is  taken  from 
Paley's  "Principal  and  Agent,"  3rd  edit.  p.  '20. 

(el  Fowk  V.  Pinsackc,  2  Lev.  153,  and  Park  Ins.  810. 

(«)  But  where  it  appears  that  a  fraud  has  been  practised  on  the  underwriters  in  collusion 
between  the  broker  and  assured,  he  may  maintain  the  action  notwithstanding  the  receipt  on 
the  pohcy.     Foy  v.  Bell,  3  Taunt.  493.     Mason  v.  Simeon,  3  Taunt.  497. 

(i)    1  Camp.  .532. 

(r)  Trin.  sit.  at  Guild.  14  Geo.  3,  Park  Ins.  811. 


THE    ASSURERS,   ETC.  303 

It  was  an  action  broiiglit  by  the  plaintifTs,  as  assignees  of  Milton,  who  was 
a  broker  at  Newcastle,  and  wlio  had  procured  an  insurance  to  be  made  by 
differont  persons  for  the  defendant.  The  declaration  stated,  that  in  considera- 
tion that  the  bankrupt  would  procure  an  insurance  to  be  made  on  the  ship 
Jason,  and  would  procure  600/.  to  be  insured  thereon  *by  good  ^  *r\AQ  -i 
and  sufllcient  persons,  the  defendant  promised  that  he  would  pay  L  J 

the  bankrupt  the  premium,  and  a  reasonable  sum  for  his  trouble.  The  first 
question  was,  whether  credit  was  given  by  the  underwriters  to  the  assured,  or 
to  the  broker,  where  the  premium  was  not  paid  down  at  the  time  the  assurance 
was  made.  Milton,  the  bankrupt,  swore,  that  in  May,  1764,  he  was  told  by 
the  underwriters  tlial  they  should  look  upon  him  as  their  debtor,  and  that  they 
would  have  nothing  to  do  with  the  assured,  which  was  considered  ai  Newcastle 
as  the  London  practice  5  that  from  that  time  he  had  always  acted  upon  this 
plan,  and  had  paid,  since  that  time,  1,000/.  to  the  underwriters,  which  he  had 
never  received.  His  commission  was  5/.  per  cent.  London  insurance  brokers 
were  then  called,  who  said,  they  understood  the  underwriters  looked  to  them 
only ;  and  that  the  underwriters  did  not  once  in  ten  times  know  who  the  assured 
were ;  and  that  in  case  of  failure  the  underwriters  came  upon  the  effects  of  the 
broker;  the  broker  upon  those  of  the  assured.  Lord  Mansfield  said,  "The 
plainliirs'  case  is  stronger  than  referring  to  the  general  usage  in  London,  for 
they  act  by  a  specific  rule,  which  they  suppose  to  be  die  rule  in  J^ondon;  and 
if  the  usage  in  London  was  doubtful,  still  the  plaintiffs  would  be  entitled  to 
recover."     There  was  a  verdict  for  the  plaintiff's.  («) 

And,  therefore,  it  was  held  in  the  case  of  Be  Gamind  v.  Pigou,  {b)  in  aa 
action  by  the  assured  for  a  total  loss  against  *the  underwriter,  it  p  ^c^^q  t 
was  held  that  the  latter  could  not  as  against  the  assured  set  off  the  L  J 

premiums,  although  they  had  never  been  paid  him  by  the  broker. 

2.  But  in  Power  and  another,  Assignees,  S,'c.,  v.  Butcher,  (c)  it  was  held 
that  although  the  underwriter  is  estopped  by  the  acknowledgment  on  the  policy 
of  the  receipt  of  the  premium,  from  suing  the  assured,  the  assured,  however, 
is  not  discharged  irom  his  liability  to  the  broker,  and  is  liable  to  him  in  an 
action ;  and  it  would  seem  that  the  broker  can  recover  the  premium  from  the 
assured,  even  though  he  has  not  paid  it  to  the  underwriters,  if  he  has  entered 
into  any  contract  whereby  he  has  made  himself  liable  to  them  for  it.  The 
insurance  broker  made,  on  behalf  of  another  person,  a  policy  under  seal  with 
a  company  of  which  he  was  a  member.  The  policy  recited  that  the  broker, 
upon  his  representation  that  he  was  duly  authorized  as  owner,  agent,  or  other-- 
wise  to  make  assurance  upon  the  vessel  mentioned  in  the  policy,  and  was 
desirous  of  making  such  insurance,  had  covenanted  with  the  company  to  pay 
the  premium,  and  then  alleged  that  in  consideration  of  the  premises,  and  of  such 
covenant  the  policy  was  made;  the  broker  having  become  bankrupt  without 
having  paid  the  premium  to  the  company,  it  was  held  that  his  assignees  were 
entitled  to  recover  from  the  assured  the  amount  of  the  premium  which  he  had 

(tt)  The  learned  reporter  of  the  case  of  Dalzcll  v.  Mair,  makes  the  following  sensible 
observations  upon  the  case  of  Airy  v.  Bland.  "  The  object  of  the  formal  acknowledgment 
of  the  receipt  of  the  premium  inserted  in  the  policy  is  probably  to  preclude  the  necessity  of 
proving  it  when  a  loss  happens,  and  to  prevent  the  underwriters  from  objecting,  that  there 
was  a  want  of  consideration  for  their  promise,  in  case  the  broker  has  not  paid  them.  The 
receipt  is  no  bar  to  an  action  by  the  underwriter  against  the  broker ;  and  the  distinctioa 
seems  to  be  this,  that  as  between  these  parties  it  is  no  evidence  at  all,  but  that  as  between 
the  underwriter  and  the  assured  it  is  conclusive.  It  follows  as  a  consequence  from  this  deci- 
sion, that  an  action  cannot  be  maintained  for  premiums  or  insurance  by  the  underwriter 
against  the  assured,  which  has  hitherto  been  vcxala  (/ueslio." 

(b)  4  Taunt.  247.  (c)   10  B.  &  C.  329. 

Vol.  VII.— V 


304  THE    ASSURERS,  ETC. 

covenanted  to  pay.  And  as  it  was  proved  tliat  the  company  would  have 
allowed  the  broker  when  he  paid  the  premiums,  to  deduct  31/.  Is.  for  com- 
mission, it  was  held  that  his  assignees  were  entitled  to  recover  that  sum  under 
the  words  in  the  declaration,  "work  and  labour"  done  by  the  broker,  and 
under  the  word  "insurance"  in  the  particulars  of  demand. 

Bayley,  J.,  said, — "It  seems  to  me  that  die  plaintiffs  are  entitled  to  the 
judgment  of  the  Court.  This  is  an  action  by  the  assignees  of  an  insurance 
broker  for  work  and  labour,  and  premiums,  against  the  defendants,  who  are 
shipowners,  and  had  employed  the  broker  to  make  certain  policies  in  their 
behalf,  which  he  did  make  with  a  company  of  which  he  was  a  member.  Now, 
r  *PiPin  1  according  to  the  ordinary  course  of  *trade  between  the  assured,  the 
L  J  broker  and  the  underwriter,  the  assured  do  not  in  the  first  instance 

pay  the  premium  to  the  broker,  nor  does  the  latter  pay  it  to  the  underwriter. 
But  as  between  the  assured  and  the  underwriter,  the  premiums  are  considered  as 
paid.  The  underwriter,  to  whom,  in  most  instances  the  assured  are  unknown, 
looks  to  the  broker  for  payment,  and  he  to  the  assured.  The  latter  pays  the 
premium  to  the  broker  only,  and  he  is  a  middle-man  between  the  assured 
and  the  underwriter.  But  he  is  not  solely  agent ;  he  is  a  principal  to  receive 
the  money  from  the  assured,  and  pay  it  to  the  underwriter.  In  this  case  the 
policies  were  not  in  the  ordinary  form,  but  by  deed,  and  the  broker  covenanted 
to  pay  the  premiums  to  the  underwriters  ;  and  in  consideration  of  the  covenant, 
the  policies  were  made.  The  underwriters  thereupon  took  a  covenant  from 
the  broker  to  pay  the  premium,  instead  of  acknowledging  the  receipt  of  the 
premium  as  they  do  in  ordinary  cases  of  a  policy  by  simple  contract.  In  such 
a  case  the  action  would  be  maintainable  at  the  suit  of  the  broker,  on  the  prin- 
ciple that  he  was  entitled  to  call  upon  the  assured  for  the  payment  of  those 
premiums  which  he  had  become  liable  to  pay  to  the  underwriters,  and  which 
they  had  acknowledged  the  receipt  of.  The  assured  have  had  the  benefit  of 
the  policies,  and  if  the  underwriters  were  liable  upon  the  risk,  they  were  war- 
ranted in  calling  upon  the  broker  to  pay  the  premiums.  In  point  of  justice 
the  assured  ought  to  pay  the  broker,  or  in  the  event  which  has  happened,  his 
assignees.  In  an  ordinary  case  the  assurers  Avould  have  no  claim  upon  the 
assured  for  the  premium,  because,  by  the  pohcy,  they  acknowledge  the  receipt 
of  it.  Here,  there  is  no  such  acknowledgment,  and  therefore  it  may  be  said 
the  assurers  may  claim  the  premiums  from  the  assured,  a  contract  cannot  be 
raised  by  an  implication  of  law,  except  in  the  absence  of  an  express  contract. 
Now,  here  there  was  an  express  contract  between  the  underwriters  and  the 
assured,  through  the  agent,  and  by  that  contract  the  underwriters  agreed  to  look 
to  the  broker  alone  for  die  premium.  Then  it  is  necessary  to  consider  in  what 
r  *iiiii  1  ^situation  the  broker  stands,  in  order  to  see  whether  he  is  entitled 
L  J  to  call  upon  the  assured  for  the  premium.     The  underwriters  have 

a  claim  upon  him  for  the  full  amount  of  premiums ;  and,  if  that  be  so,  he 
ought  to  recover  those  premiums  from  the  persons  who  have  had  the  benefit  of 
the  policies.  But  a  difficulty  arises  from  the  peculiar  form  of  the  declaration, 
and  the  particulars  of  the  plaintiff's  demand.  It  seems  to  me  that  he  cannot 
recover  the  premiums,  as  money  paid  to  the  defendant's  use,  because  the  bank- 
rupt never  actually  paid  any  money,  but  when  we  look  at  the  form  of  the 
declaration,  and  leave  out  parts  which  may  be  fairly  omitted,  I  think  the  plain- 
tiffs may  recover  the  full  amount  of  Uieir  demand ',  and  I  am  of  opinion  that 
they  are  entided  to  recover  the  31/.  Is.,  which  may  be  considered  as  a  com- 
pensation for  the  work  and  labour  of  die  broker  in  making  the  insurance." 

3.  In  die  case  of  Edgar  v.  Bumslcad^  (a)  it  was  held,  that  where  after  the 
happening  of  a  loss  the  broker  paid  the  subscription  of  one  of  the  underwriters 

(a)   1  Camp.  411. 


THE    ASSURERS,  ETC.  305 

to  the  assured,  he  could  not  recover  it  back  again  from  the  assured,  upon  dis- 
covering the  fact  of  the  insolvency  of  the  underwriter. 

The  phiiiitifT  being  an  insurance  broker,  not  a  policy  underwritten  for  the 
defendant,  a  merchant,  on  the  ship  Alfred,  whicli  was  subscribed  (amongst 
Others)  by  one  Lonios.  A  loss  happened,  whereupon  the  plaintifl'  paid  the 
full  amount  of  tlie  sum  insured  to  the  defendant.  Previously  to  this,  Lomos 
had  become  insolvent,  without  \\\v,  plaintilV  being  aware  of  the  fact;  and  it  was 
now  contended  that  he  had  a  riglit  to  recover  the  sum  he  had  paid  to  the  defend- 
ant in  respect  to  Lomofi\s'  subscription,  as  money  paid  under  a  mistake  of  the 
fact.  But  Lord  Ellcnborou<j;h  lieUl  that  an  account  of  the  well-known  course 
of  dealing  between  the  insurance  broker,  the  merchant,  and  the  underwriter, 
the  money  could  not,  under  those  circumstances,  be  recovered  back  from  the 
assured." 

*The  question  of  credit  for  premiums  between  the  broker  and  p  ^rrn  -i 
underwriter,  arose  in  the  case  of  E(bj:ar  and  another,  Assignees,  L  J 

<5'C.,  of  Carden,  v.  Fowler  and  another,  (a)  an  action  brought  by  the  assignees 
of  a  bankrupt  underwriter  against  the  brokers,  for  premiums  supposed  to  have 
been  received  by  the  latter  from  the  assured,  for  policies  wliich  they  (the 
brokers)  had  procured  the  bankrupt  to  sul)scribe  as  an  underwriter.  For  diese 
very  premiums  the  brokers  had  given  tlie  underwriter  credit  in  their  account 
with  him,  and  had  again  taken  credit  for  Uiem  in  their  account  with  the  assured. 
The  counsel  in  tlie  cause,  the  very  learned  Judge,  (Mr.  Justice  Le  Blanc,) 
before  whom  it  was  tried,  and  liOrd  Ellenboroii2;h  and  the  other  Judges  of  the 
Court  of  King's  Bench,  before  whom  it  was  brought  upon  a  case  reserved  for 
their  opinion,  never  seem  to  have  doubted,  that  the  underwriter  may  maintain 
an  action  directly  against  the  broker  for  premiums.  But  that  case  was  decided, 
as  to  tlic  main  point,  in  favour  of  the  broker,  because  the  premiums  in  question 
were  for  re  assurances,  which  are  illegal  by  the  19  Geo.  2,  c.  37,  and  which 
the  broker  had  not  in  fact  received  from  the  assured,  but  only  credit  for  them 
had  been  given  in  account  between  the  broker  and  underwriter. 

4.  The  relative  situation,  in  which  broker,  assured,  and  underwriter  stand  to 
each  other,  has  been  more  frequendy  discussed  of  late  years  upon  questions  of 
premium,  on  account  of  several  failures,  which  made  the  decision  of  these 
points  of  consequence  to  their  respective  estates. 

A  question  of  this  nature  arose  about  1786,  in  the  case  of  Grove  v.  Du- 
bois, [b)  when  it  was  held  that  in  an  action  by  the  assignees  of  a  bankrupt 
underwriter  against  tlie  broker,  for  premiums  of  insurance  upon  policies  under- 
written by  the  bankrupt  for  the  broker  in  his  own  name  :  the  broker  having  a 
del  credere  commission  from  his  principal,  might  set  oft"  under  the  general  issue 
upon  the  statute  of  5  Geo.  2  (c)  respecting  mutual  credit,  losses  which  had  hap- 
pened before  *the  bankruptcy,  and  for  which  premiums  the  under-  p  srpjo  "i 
writer  had  debited  the  broker.  L  '      J 

This  doctrine  was  soon  after  extended  to  a  case  of  Bize  v.  Dickason,  (a) 
where,  thougli  Uie  loss  had  happened  before,  the  adjustment  did  not  take  place 
till  after  the  bankruptcy. 

In  the  next  case,  Shee  v.  Clarkson,  (b)  the  Court  of  King's  Bench,  held, 
that  as  the  broker  is  the  mutual  agent  both  of  the  assured  and  underwriter, 
while  the  premium  remains  in  his  hands,  for  the  use  of  the  underwriters,  if  he 
receive  notice  of  an  event  entiding  the  assured  to  a  return  of  premium,  before 
any  action  brought  against  him  for  the  whole  of  the  premium,  he  is  entitled  to 

(a)  3  East,  222.  (b)  1  T.  R.  112. 

(c)  See  6  Geo.  4,  c.  16,  s.  50.  (a)   1  T.  K.  287. 

(6)   12  East,  507;  and  see  Lord  C.  J.  Mansfield's  opinion  in  4  Taunt.  248. 


306  THE    ASSURERS,  ETC. 

deduct  such  returns,  and  only  to  pay  over  the  difTerence  to  the  underwriter,  lie 
never  having  parted  with  the  policies.  In  this  case  there  v/as  no  bankruptcy, 
and  of  course  no  question  about  mutual  credit. 

But  in  the  next  case  of  Minett^  Jissignee  of  Barchard  v.  Forrester^  [c]  a 
bankruptcy  had  happened,  and  the  Court  of  Common  Pleas  were  clearly  of 
opinion,  that  the  broker  is  the  agent  for  both  parties ;  first,  for  the  insured  in 
effecting  the  policy,  and  in  every  thing  that  is  to  be  done  in  consequence  of  it, 
tlien  he  is  agent  for  the  underwriter  as  to  the  premium,  but  for  nothing  else ; 
and  that  when  once  a  bankruptcy  had  taken  place,  the  broker  cannot,  in  any 
sense,  be  said  to  be  an  agent  for  the  underwriter,  as  the  authority  given  by  the 
underwriter  himself  ceases  after  his  bankruptcy  ;  and  when  he  became  a  bank- 
rupt, his  right  to  the  premium  \vas  immediately  communicated  to  his  assignees. 
That  Court  therefore  held,  that  an  insurance  broker  indebted  to  a  bankrupt 
underwriter  for  premiums,  cannot,  without  some  special  authority,  set  off 
against  that  debt  sums  due  to  the  assured  for  return  of  premium,  whether  those 
returns  became  due  after  or  before  the  bankruptcy.  And  relying  on  the  above 
r  »Pip;<l  n  decision,  they  decided  accordingly,  as  to  returns  of  premiums  *for 
L  J  arrival,  Avhich  had  taken  place  after  the  bankruptcy,  [a] 

In  a  subsequent  case  of  Glennie  v.  Edmunds,  [b)  here  an  action  was  brought 
by  the  assignees  of  an  assured,  who  had  become  bankrupt,  and  who  always 
acted  as  his  own  broker,  for  a  total  loss,  the  underwriter  was  not  allowed  to  set 
off  as  a  mutual  credit,  premiums  due  from  the  bankrupt  upon  that  and  other 
policies.  It  does  not  appear  that  the  statute  of  19  Geo.  2,  c.  32,  which  enables 
the  assured  to  claim  against  bankrupt  underwriters,  as  if  the  loss  had  actually 
happened,  was  observed  upon  at  the  Bar.  Supposing  both  parties  had  become 
bankrupts,  the  assignees  of  the  assured  could  have  claimed  the  loss  against  the 
estate  of  the  underwriter.  Would  not  the  equity  of  the  same  statute  have 
allowed  the  premiums  to  be  set  off;  and  as  no  broker  intervened  in  this  case, 
may  it  not  be  considered  that  this  is  strictly  a  case  of  mutual  credit?  (c) 

In  Parker,  Jissignee  of  Parker,  v.  Smith,  [d)  which  was  an  action  by  the 
assignees  of  an  underwriter  against  insurance  brokers  for  the  balance  of  an 
adjusted  account,  and  also  for  premiums  due  to  the  bankrupt  upon  policies 
underwritten  before  the  bankruptcy,  the  brokers  are  not  entitled  to  deduct  for 
returns  of  premium  which  formed  a  part  of  the  adjusted  account,  but  where  the 
events  entitling  them  to  the  return  were  not  known  till  after  the  adjustment : 
neither  can  the  brokers  deduct  for  returns  of  premium  on  policies,  for  the  pre- 
miums of  which  the  action  is  brought,  the  events  entitling  them  to  which 
returns  happened  before  the  bankruptcy,  but  were  not  adjusted;  neither  can 
they  deduct  where  the  events  happened  since  the  bankruptcy,  but  before  the 
commencement  of  the  action,  the  brokers  having  neither  a  del  credere  commis- 
sion, (a  circumstance  which  we  shall  presently  see,  the  Court  considered  as 
P  *CK-  -1  making  no  difference,)  nor  being  personally  ^interested  in  the 
L  J  insurance.     In  giving  the  judgment,  the  Court  expressly  founded 

it  upon  a  conformity  to  that  of  Minett,  Assignee  of  Barchard,  v.  Forrester, 
in  the  Court  of  Common  Pleas,  (e) 

In  Grove  v.  Dubois,  and  Bize  v.  'Dickason,  there  was  a  del  credere  com- 
mission, a  fact  which  pressed  in  the  case  of  Cinnming  v.  Forrester ;  {f)  but 
Lord  Fllenborough  said,  in  giving  judgment,  he  could  not  conceive  how  a 
contract  between  A.  and  B.  can  vary  the  rights  between  B.  and  a  third  person, 

(c)  Goldschmidt  v.  Lyon,  4  Taunt.  534.        (a)  See  6  Geo.  4,  c.  IG,  ss.  50,  51. 
(/>)  4  Taunt.  775. 

(c)  Sec  Graham  v.  Russell,  B.  R.  Michaelmas,  57  Geo.  3.  Parkins.  814';  and  sea  now 
6  Geo.  4,  c.  16,  s.  53.  (rf)   16  East,  382. 

(e)  A}ite,  p.  553.  (/)   1  M.  «&  S.  494. 


THE    ASSURERS,   ETC.  307 

who  is  a  stranger  to  it,  and  empowar  B.  to  set  up  a  claim  against  him  as  derived 
out  of  that  contract.  And  therelbre  ifie  Court  decided,  that  where  a  broker 
made  poUcios  in  the  name  of  his  principal  under  a  del  credere  commission,  he 
could  notset-ort"  airainst  an  action  for  the  premium  total  losses  which  happened 
on  those  policies,  although  the  broker  had  accounted  for  them  with  his  principal. 

In  this  last  case  there  was  no  bankruptcy,  and  Lord  Ellenborow^h  also 
observed,  that  in  Grove  v.  Dubois,  the  policy  was  filled  up  in  the  name  of  the 
broker,  and  the  whole  dealing  was  lietween  the  broker  and  tlie  underwriter. 

He  also  made  a  similar  observation  in  the  case  of  Raster,  Assignee  of  Sivan 
V.  Eason,  (c)  where  the  Court  of  King's  Bench  held,  after  time  taken  to  delib- 
erate, that  in  an  action  brought  by  the  assignees  of  a  bankrupt  underwriter,  the 
broker  could  only  set  ofl'  such  losses  and  returns  as  were  due  on  policies  made 
in  the  broker's  own  firm,  such  losses  and  returns  having  become  due  on  those 
policies  before  the  underwriter  stopped  payment,  though  never  adjusted  by  the 
bankrupt,  and  for  the  amount  of  which  losses  and  returns  the  broker  had  given 
their  principals  credit.  But  the  Court  also  decided  that  the  broker  could  not 
set-off,  where  the  policies  were  made  in  the  name  of  the  principals  themselves, 
though  the  broker  hatl  a  del  credere  commission. 

And  in  a  subsequent  case  of  Parker  v.  Beasly,  [d)  the  "Court  |-  ^__^  -, 
of  King's  Bench,  adopting  the  distinction  just  made,  decided,  that  L  J 

where  brokers  made  policies  on  goods  on  account  of  their  principals,  but  in 
their  own  names,  and  accepted  bills  drawn  on  them  on  the  goods  which  were 
consigned  to  them,  and  lost  before  their  arrival,  held,  that  the  broker  might  set 
ofT  such  losses  against  the  assignees  of  the  bankrupt  underwriter,  though  there 
was  no  commission  del  credere,  nor  any  adjustment. 

5.  The  main  point  in  all  these  cases  is,  that  bankruptcy  determines  agency, 
and  vests  all  the  bankrupt's  rights  in  the  assignees  ;  and  that  the  broker  acted 
under  a  del  credere  commission,  cannot  be  in  any  other  situation  with  respect 
to  a  third  person  than  he  would  be  without  it ;  but  that  wherever  all  the  deal- 
ings are  between  the  underwriter  and  broker  as  principal,  and  the  underwriter 
knows  him  in  no  other  character,  there  the  rights  of  a  principal  attach  upon 
him. 

In  the  case  of  Housten,  Executor,  v.  Robertson,  [a]  the  Court  of  Common 
Pleas,  in  conformity  to  the  principle  of  all  the  above  decisions,  held  tliat  death 
was  to  be  put  on  tlie  same  footing  as  bankruptcy ;  and  that  as  the  bankruptcy 
in  the  one  case  caused  the  authority  of  the  agent  to  cease,  so  did  death  in  the 
other.  The  interest  in  the  one  case  became  vested  in  the  assignees ;  in  the 
other,  in  the  executors.  And  therefore  they  held,  that  in  an  action  by  the 
executors  of  an  underwriter  against  a  broker  for  premiums  due  on  policies  sub- 
scribed by  their  testator,  the  broker  could  not  set  ofT  returns  of  premium  which 
became  due  after  the  death  of  the  testator. 

6.  Having  now  referred  to  the  principal  decisions  to  which  the  Courts,  in 
the  earlier  cases,  came  upon  this  subject,  and  to  the  effect  which  they  held  that 
the  bankruptcy  or  death  of  die  underwriters  had  upon  the  running  accounts 
between  them  and  the  broker,  I  shall  now  proceed  to  consider  the  more  recent 
cases  in  which  the  effect,  which  passing  die  accounts  between  the  broker,  the 
underwriter,  and  the  *assured,  according  to  a  known  custom  of  p  ^..,_  -. 
Lloyd's,  has  in  discharging  the  debt  of  the  underwriter  to  the  latter,  ^  ^'^*  J 
been  fully  discussed  and  settled. 

It  has  been  already  observed  that  the  insurance  broker  is  agent  both  for  the 
assured  and  the  underwriter.     His  duty  to  the  assured  is  to  receive  from  the 


(c)  2  M.  &  S.  112.  ((!)  2  M.  &  S.  423. 

(a)  2  Marsh.  138. 


308  THE    ASSURERS,  ETC. 


underwriter  the  proceeds  of  the  settlement  of  a  loss,  and  his  duty  to  the  under- 
writer is  to  pay  them,  when  received,  to  the  assured.  Although  the  policy 
contains  an  acknowledgment,  that  the  premium  has  been  paid  by  the  assured 
to  the  underwriter,  it  is  not  usual  for  the  broker  to  pay  it  at  the  time  of  making 
the  policy,  but  the  underwriter  gives  him  credit  for  it,  and  looks  to  him  for 
payment,  and  at  that  time  frequently  knows  nothing  whatever  of  the  assured. 
But  when  a  loss  happens,  a  debt  theii  arises  to  the  assured  from  tlie  underwriter, 
and  the  latter  can  only  discharge  that  debt,  either  by  payment  to  the  assured 
himself,  or  to  his  agent  lawfully  authorized  to  receive  it. 

Lord  Tenter  den,  in  Scott  v.  Irving,  (a)  says,  "the  general  rule  is,  that  the 
broker  is  debtor  to  the  underwriter  for  the  premium ;  and  the  underwriter  is 
debtor  to  the  assured  for  the  loss."  When  the  broker  has  made  the  insurance, 
he  usually  remits  the  policy  to  the  assured,  and  when  a  loss  occurs,  the  assured 
sends  it  back  again  to  the  broker,  and  thereby  renders  him  his  agent  to  settle 
with  the  underwriter.  Now  the  well  known  rule  of  law  respecting  agents 
receiving  money  on  behalf  of  their  principals  is  this,  that  "where  a  creditor 
employs  an  agent  to  receive  money  from  his  debtor,  and  the  agent  receives  it, 
the  debtor  is^'discharged  as  against  the  principal ;  but  if  the  agent,  instead  of 
receiving  money,  writes  off  money  due  from  him  to  the  debtor  the  latter  is  not 
discharged."  {b)  But,  in  cases  of  insurance,  this  general  rule  of  law  is  relaxed 
by  a  usage,  amongst  merchants,  insurance  brokers,  and  underwriters  in  the  city 
of  London,  to  set  off  the  general  balance  of  the  accounts  between  the  broker 
-,  and  the  underwriter,  at  the  time  of  the  loss,  against  the  loss,  and 
[  *558  J  ...^^^  ^j^g  broker  then  to  debit  himself  to  that  amount  in  his  account 
wdth  the  assured ;  and  that  this  is  considered,  by  the  custom,  a  discharge,  by 
the  underwriter,  of  his  debt  to  the  assured.  The  Courts  have  been  very  slow 
in  sufferino-  this  usage  to  infringe  the  above-mentioned  general  rule  of  law,  but 
it  now  may  be  considered  as  decided,  that  when  the  usage  is  within  the  know- 
ledge of  the  assured,  and  assented  to  by  him,  this  passing  of  the  accounts 
between  the  broker,  the  underwriter  and  assured,  operates  as  a  payment  to  the 
latter,  and  an  extinguishment  of  the  underwriter's  debt. 

Lord  Minger,  in  delivering  the  judgment  of  the  Court  of  Exchequer  in  the 
recent  case  of  Steiourt  v.  Merdein,  (c)  when  this  subject  was  fully  discussed, 
concludes  in  these  words :  "it  must  not  be  considered  that  by  this  decision  the 
Court  means  to  overrule  any  case  deciding  that  when  a  principal  employs  an 
agent  to  receive  money,  and  pay  it  over  to  him,  the  agent  does  not  thereby 
acquire  any  authority  to  pay  a  demand  of  his  own  upon  the  debtor  by  a  set  off 
in  account  with  him.  But  the  Court  is  of  opinion  that  where  an  insurance 
broker,  or  any  other  mercantile  agent,  has  been  employed  to  receive  money  for 
another,  in  the  general  course  of  his  business,  and  where  the  known  general 
course  of  business  is  for  the  agent  to  keep  a  running  account  with  the  principal, 
and  to  credit  him  with  sums  he  may  have  received  by  credits  in  account  with 
the  debtor,  with  whom  he  also  keeps  running  accounts,  and  not  merely  with 
moneys  actually  received,  the  rule  laid  down  in  these  cases  cannot  be  properly 
applied,  but  it  must  be  understood  that  where  an  account  is  bond  fide  settled 
according  to  that  known  usage,  the  original  debtor  is  discharged,  and  the  agent 
becomes'' the  debtor,  according  to  the  meaning  and  intention,  and  widi  the 
authority  of  the  principal."  _ 

As  the  principles  of  law  settled  by  these  cases  are  of  great  importance,  1  leel 
compelled  to  refer  to  them  at  some  length. 


(rt)  1  B.  &  Ad.  612. 

{h)  Per  Lord  Tcntorden,  in.  Russel  v,  Banglcv,  4  B.  &  Ad.  398. 

(c)  4  M.  &  W.  223. 


THE    ASSURERS,   ETC.  309 

The  first  case  is  that  of  Russel  v.  Bangley.  (a)  It  was  *an  r-  jje-rq  -, 
action  on  a  policy  o(  insurance  subscribed  by  the  defendant  for  L  '^  J 
150/.  The  policy  was  made  in  October,  1819,  by  one  Savery,  a  broker,  who 
returned  it  to  the  assured.  A  loss  having  afterwards  happened,  the  plaintiff 
delivered  it  back  to  Savery  to  get  the  loss  adjusted.  On  the  15th  of  March, 
the  loss  was  adjusted  by  the  defendant,  payable  at  one  month.  Savery  then 
made  out  and  transmitted  to  the  plaintiff  his  account  current,  in  which  he  made 
him  debtor  for  various  premiums  upon  former  policies,  and  credited  him  with 
150/.,  the  amount  of  the  loss  upon  the  policy,  and  the  balance  due  to  the  plain- 
tiff on  this  account  was  133/.  45-.  For  that  sum  the  plaintiff  drew  a  bill  at  two 
months  on  Savery,  which  the  latter  accepted.  Savery,  at  the  same  time, 
debited  the  defendant  with  the  amount  of  this  loss  in  his  account.  The  policy 
remained  in  Savery's  hands,  but  the  name  of  the  defendant  was  not  cancelled. 
The  bill  drawn  by  the  plaintiff  became  due  on  the  21st  of  May,  but  was  not 
paid,  and  soon  afterwards  Savery  became  bankrupt.  It  was  proved  that  it 
was  usual  in  the  insurance  business  for  the  broker  to  settle  with  the  underwriter 
according  to  the  state  of  the  account  between  them.  If  the  account  was  against 
the  underwriter,  the  latter  paid  the  amount  of  the  loss  or  the  balance  (after 
deducting  the  premium)  to  the  broker  at  the  expiration  of  the  month,  but  if  the 
account  was  in  his  favour,  then  no  money  passed  to  the  broker,  but  the  latter 
debited  the  underwriter  with  the  loss,  and  setded  the  balance  of  the  account  at 
the  end  of  the  year.  Between  the  assured  and  the  broker  the  balance  is  either 
paid  or  carried  to  the  credit  of  the  assured,  at  the  option  of  the  latter.  At  the 
trial  before  Graham,  B.,  at  Bristol,  the  plaintiff  was  nonsuited,  with  liberty 
given  him  by  the  learned  Judge  to  move  to  enter  a  verdict.  A  rule  nisi  having 
been  obtained,  after  the  argument,  Abbott,  C.  J.,  said,  "The  general  rule  of 
law  is,  that  if  a  creditor  employs  an  agent  to  receive  money  from  a  debtor,  and 
the  agent  receives  it,  the  debtor  is  discharged  as  against  the  principal ;  but  if  the 
agent,  instead  of  receiving  money,  writes  off  money  due  from  him  to  the 
debtor,  then  *the  latter  is  not  discharged.  In  cases  of  insurances,  ^  ^nan  n 
usage  may  possibly  introduce  a  different  rule ;  but  at  all  events  an  *-  ^ 

underwriter  has  never  been  considered  discharged  as  against  the  assured,  until 
his  name  has  been  struck  off  the  policy.  If  the  underwriter  relies  on  his  com- 
munication with  the  broker  as  discharging  him  M'ithout  actual  payment  of  the. 
money,  he  should  insist  that  his  name  should  be  struck  off  the  policy.  If  that 
be  done,  and  the  plaintiff  then  forbears  to  call  upon  him  for  payment  within 
the  period  warranted  by  the  usage  of  trade,  then  the  underwriter  may  be  dis- 
charged, but  not  otherwise."  The  rest  of  the  Court  were  of  the  same  opinion, 
and  the  rule  for  a  new  trial  was  made  absolute. 

Todd  v.  Reid,  [b)  was  decided  in  the  same  year  with  Russel  v.  Bangley, 
and  previous  to  it.  The  case  is  very  shordy  reported.  And  the  opinion  of 
Abbott,  C.  J.,  expressed  at  the  trial  respecting  the  usage,  was  afterwards 
qualified  by  him  (as  we  have  seen)  in  giving  judgment  in  Russel  v.  Bangley, 
and  the  general  terms  made  use  of  by  the  Court  must  be  considered  now  as 
inconsistent  with  the  more  recent  decisions. 

The  next  case  in  order  of  time,  was  the  important  case  of  Bartlett  v.  Pent- 
land,  (c)  argued  in  Easter  Term,  1830,  in  which  the  usage  and  practice  of 
Lloyd's  were  brought  fully  before  the  Court.  In  this  case  likewise,  the  Court 
held  that  the  underwriter  was  not  discharged  by  a  setdement  with  the  broker. 
But  the  reason  of  this  decision  appears  to  have  been  that  the  circumstances 
raised  a  strong  presumption  that  the  plaintiffs  were  ignorant  of  the  usage,  and 


(a)  4  B.  &  A.  395.  (6)  4  B.  &  A.  210. 

(c)   10  B.  &  C.  760. 


310  THE    ASSURERS,   ETC. 

that  they  merely  commissioned  Mitchell,  tlie  broker,  to  receive  for  them  the 
loss,  and  pay  it  over  to  them,  "stating  that  he  knew  better  how  to  act  than 
they,  as  they  never  had  a  loss  before,"  and  it  was,  therefore,  impossible  for 
them  to  be  considered  to  have  had  such  a  knowledge  of  the  custom  for  them  to 
authorize  the  broker  to  make  such  a  settlement  for  them  with  the  underwriter. 
*The  case  of  Scott  v.  Irving,  (a)  was  decided  in  Michaelmas 
L  *^"1  J  Term,  in  the  same  year.  It  was  an  action  on  a  policy  of  insurance 
"at  and  from  Gibraltar  to  Havannah,  on  a  cargo  of  cottons,  by  the  Union.'" 
At  the  trial  before  Lord  Tenterden,  C.  J.,  at  Guildhall,  a  verdict  was  found 
for  the  plaintiff,  damages  100/.,  subject  to  the  opinion  of  the  Court,  on  the 
following  case : — 

On  the  27th  Jidy,  1824,  a  cargo  of  cotton,  the  property  of  the  plamtifl,  was 
shipped  on  board  the  Union  at  Gibraltar,  to  be  carried  thence  to  Havannah. 
On  the  3rd  September,  1824,  the  plaintiff,  who  resided  at  Glasgow,  wrote  to 
Mitchell,  an  insurance  broker  at  Lloyd's,  to  get  100/.  insured;  and  accordingly 
the  defendant,  an  underwriter  at  Lloyd's,  subscribed  the  policy  on  which  the 
action  was  brought,  and  which  stated,  on  the  face  of  it,  to  be  made  by  Mitchell, 
agent,  on  the  cotton  by  the  Union,  "at  and  from  Gibraltar  to  Havannah,  for 
100/.,  at  a  premium  of  six  guineas  per  cent."  The  policy  was  in  the  usual 
printed  form,  and  contained  an  acknowledgment  that  the  premium  had  been 
paid  by  the  assured  to  the  underwriters.  An  account  had,  for  several  years, 
been  kept  between  the  defendant  and  Mitchell,  in  the  usual  way  in  Avhich 
accounts  between  underwriters  and  brokers  are  kept,  in  conducting  business  at 
Lloyd's,  and  Mitchell  was  debited  in  this  account  for  the  premiums  on  the  said 
policy.  The  Union  was  afterwards  lost.  When  this  became  known  to  the 
plaintiff,  he  gave  Mitchell  directions  to  obtain  a  settlement  of  the  loss,  and 
Mitchell  laid  the  policy  and  papers  before  the  defendant,  and  other  underwriters 
on  the  policy,  at  Lloyd's,  in  the  ordinary  course  of  the  business  there.  After 
some  delay,  the  defendant,  on  the  8th  March,  1826,  signed  his  initials  to  the 
following  adjustment  of  the  policy  : — "Settled  a  loss  of  100/.  per  cent,  on  this 
policy,  payable  in  a  month;"  and  the  defendant  at  the  time  struck  his  pen 
through  his  subscription  to  the  policy,  and  also  through  his  initials  of  the  settle- 
^  1  '"^"^  °^  *^  ^^^^'     ^"  ^^^  *^^^^^  March,  1826,  the  defendant  and 

[  '562  J  lyijtgj^ell  had  an  account  then  standing  between  them.  In  that 
account  Mitchell  was  debited  46/.  for  various  premiums,  and  100/.  was  placed 
to  his  credit  on  account  of  the  loss  per  Union.  The  defendant  paid  Mitchell 
54/.,  and  took  a  receipt  for  that  sum,  stated  to  be  the  balance  of  loss  per  Union. 
There  were  no  transactions  between  the  defendant  and  Mitchell  after  this  settie- 
ment.  On  the  3rd  ^pril,  1826,  Mitchell  wrote  to  the  plaintiff  that  he  had  got 
the  last  underwriter  on  the  policy  to  sign  it  ofl",  and  enclosed  a  statement  of  the 
account,  balance  554/.  7s.  to  the  plaintiff's  credit  for  which  he  was  at  liberty 
to  draw  in  the  usual  way.  In  the  account  in  the  letter,  the  plaintiff  had  a 
credit  of  700/.  loss  by  the  Union.  On  the  7th  ^pril,  the  plaintiff  drew  on 
Mitchell,  at  ten  days'  sight,  for  554/.  7s.,  stating  at  the  same  time,  by  letter, 
that  he  did  not  know  at  what  time  it  was  usual  to  draw  for  such  a  balance, 
this  being  the  first  total  loss  he  had  ever  had  in  London.  Mitchell  refused  to 
accept  the  bill,  and,  on  the  15th  .^pril,  wrote  to  the  plaintiff,  stating  that  he 
could  not,  under  any  circumstances,  have  accepted  it,  unless  drawn  by  per- 
mission ;  but,  that,  in  consequence  of  difReulties,  he  had  been  compelled  to 
suspend  payment.  He  further  stated  : — "The  custom  of  Lloyd's  Coffee  House 
is  to  wait  one  month  after  the  loss  is  signed  off,  and  then  draw  at  three.  When 
the  underwriters  sign  off,  it  is  to  pay  in  one  month,  and  is  generally  settled 

(«)  1  B  &  Ad.  605. 


THE    ASSURERS,   ETC.  311 

when  the  accounts  can  be  made  out  and  agreed;  but  it  often  happens,  that  a 
broker  has  little  or  no  part  of  the  loss  to  receive,  as  the  underwriters  may  have 
sufficient  premiums  at  their  credit  to  cover  the  loss.  Of  the  loss  per  (Jnion^ 
I  have  received  208/.  from  the  underwriters ;  and  it  is  a  matter  of  great  regret 
to  me  that  I  received  any  of  it." 

Evidence  was  given,  on  the  part  of  the  defendant,  that  it  is  not  usual  for  the 
broker  to  pay  the  premium  on  making  the  policy ;  that  an  account  is  kept 
between  the  broker  and  underwriter  to  the  end  of  the  year,  when  they  strike 
a  balance,  averages,  deductions,  and  returns,  being  placed  to  the  ^  ^^m  "i 
credit  *of  the  broker;  but  losses,  if  they  exceed  the  amount  due  L  J 

from  the  broker  at  the  time  when  they  are  known,  are  settled  before  the  end 
of  the  year;  and  on  that  settlement  the  amount  due  from  the  broker  for  pre- 
miums up  to  the  date  of  the  knowledge  of  the  loss  is  set  against  the  loss.  On 
adjustment  of  losses,  payment  is  generally  made  in  about  a  month,  but  some- 
times the  underwriter  pays  sooner.  The  month  is  an  indulgence  to  the  under- 
writer. The  assured  may  interfere  by  himself  or  by  another  broker.  If  a 
broker  who  has  not  made  the  policy  comes  to  settle  the  loss,  the  authority  of 
the  principal  is  required.  It  is  a  general  practice  for  the  broker  to  charge  the 
merchant  witli  the  premiums  up  to  the  expiration  of  the  month  allowed  by  the 
underwriter,  and  accept  a  bill  at  three  months  for  the  balance.  After  the  argu- 
ment at  tlie  Bar,  in  which  the  preceding  cases  were  referred  to, 

Lord  Tenlerden,  C,  J. — "I  am  of  opinion  that  the  plaintiff  is  entitled  to 
recover  the  sum  of  46/.,  the  amount  of  the  premium  due  from  the  broker  to  the 
underwriter,  and  allowed  in  account  with  them ;  but  not  the  sum  of  54/.,  which 
was  actually  paid  in  money  by  the  defendant  to  the  broker.  The  general  rule 
is  that  the  broker  is  debtor  to  the  underwriter  for  the  premium,  and  the  under- 
writer debtor  to  the  assured  for  the  loss.  If  the  usage  relied  upon  in  this  case 
were  allowed  to  prevail,  it  would  have  the  effect  of  making  the  broker,  and  not 
the  underwriter,  the  debtor  to  the  assured  for  the  loss.  Such  a  usage,  however, 
can  be  binding  only  on  those  who  are  acquainted  with  it  and  have  consented  to 
be  bound  by  it.  There  may,  possibly,  be  cases  proved  where  an  assured, 
cognizant  of  such  usage,  may  be  supposed  to  have  assented  to  it,  and  therefore 
may  be  bound.  Here  no  such  assent  is  shown,  nor  can  it  be  inferred  from  the 
delay  which  has  taken  place  in  the  prosecution  of  this  claim.  If,  indeed,  in 
that  interval  of  delay  after  the  receipt  of  Mitchell's  letter  of  the  15th  ^^pril,  the 
relative  situation  of  the  underwriter  and  broker  had  been  changed,  as  if  the 
underwriter,  on  the  supposition  that  the  loss  had  been  paid,  by  the  allowance 
of  the  46/.  on  account,  had  given  the  broker  fresh  credit  for  *other  p  ^^g .  -, 
premiums  in  account,  there  might  have  been  ground  for  contending  L  J 

that  the  acquiescence  of  the  plaintiff  should  bind  him,  as  the  underwriter  would 
otherwise  have  been  prejudiced.  As  to  the  sum  of  54/.,  which  was  actually 
paid  in  money  by  the  underwriter  to  the  broker,  I  think  the  plaintiff  is  not 
entided  to  recover  that  sum.  The  ground  upon  which  he  claims  it  is,  that  the 
underwriter,  by  his  adjustment,  having  stipulated  to  pay  in  a  month,  could  not 
discharge  himself  against  the  assured  by  payment  to  the  broker  before  the  end 
of  the  monlli.  But  the  authority  given  by  the  plaintiff  to  the  broker  was  a 
general  authority  to  receive  payment  in  money.  The  plaintiff,  therefore,  is 
bound  by  the  payment  so  made  to  the  broker,  and  the  verdict  must  be  reduced 
to  46/."     The  rest  of  the  Court  concurred. 

This  subject  was  again  brought  before  the  attention  of  the  Court,  in  the 
recent  case  of  Steivart  v.  Merdein,  (a)  in  the  Exchequer,  to  which  I  have 
before  referred.     In  this  case  the  Court  thought  that  there  was  sufficient  evi- 


(a)  4M.  «Sc  W.  211. 


312  THE    ASSURERS,  ETC. 

dence  of  a  knowledge  in  the  plaintiff  of  the  usage  between  the  broker  and  under- 
writers, to  make  settlements  in  account,  by  taking  credits  in  payments.  And 
they  held  that  the  underwriter  was  thereby  discharged. 

At  the  trial  before  Lord  Minf^er,  at  Guildhall,  it  appeared  that  the  policy 
was  made  on  the  26th  of  Scplember,  1835,  and  the  defendant  was  an  under- 
writer upon  it  for  100/.  The  loss  appeared  on  JJoycrs  books,  in  May,  1836. 
At  the  time  of  the  loss  thus  appearing,  Douglas,  Anderson  Sf  Co.,  the  insu- 
rance brokers,  were  indebted  to  the  defendant  in  a  balance  of  217/.  3s.  8f/.,  on 
their  underwriting  account  of  the  previous  year,  up  to  March,  1836 ;  and  in 
the  month  of  June,  their  clerk  ngreed  this  account  with  the  defendant's  clerk, 
and  paid  him  the  sum  of  100/.,  leaving  117/.  3s.  8r/.  on  the  account,  which 
was  retained  to  meet  the  loss  on  the  Vrow  Elizabeth.  The  loss  was  adjusted 
on  the  20th  of  September,  hj  the  defendant  and  all  the  other  underwriters, 
r  *rRt\  ~\  *except  two,  at  97/.  lis.  8f/.  percent.  A  memorandum  was  then 
L  "^  J  written  on  the  policy,  stating  the  loss  to  be  payable  at  one  month, 
and  the  defendant's  subscription  was  struck  through,  and  the  loss  was  then 
passed  into  tlic  accounts  between  Douglas,  Jlnderson  8,'  Co.,  and  the  defend- 
ant, in  their  respective  books,  but  the  account  was  not  formally  agreed  between 
them.  The  plaintiffs  had  for  several  years  employed  Douglas^  Anderson  4' 
Co.,  as  their  brokers,  for  making  insurances  in  London,  and  the  latter  had  a 
general  account  current,  as  well  as  an  insurance  account,  with  the  plaintiffs  ; 
each  being  kept  quite  distinct,  and  the  balance  of  the  insurance  account  being 
at  certain  periods  carried  into  the  general  account  as  cash.  The  further  infor- 
mation required  by  the  two  underwriters  being  laid  before  them  in  the  early 
part  of  November,  Douglas,  Anderson  fy  Co.,  advised  the  plaintiffs  of  the 
loss  being  about  to  be  settled  by  them,  the  plaintiffs  drew  two  bills  for  600/. 
cash,  on  the  16th  and  17th  of  November,  and  on  the  19th  of  November, 
Douglas,  Anderson  <§•  Co.,  enclosed  them  a  credit  note  for  account  of  the  set- 
tlement of  the  whole  loss,  the  amount  of  which  (1 155/.  3s.  lOf/. )  they,  Douglas, 
Anderson  8,'  Co.,  carried  to  the  credit  of  their  insurance  account,  of  which 
they  sent  an  extract,  and  they  debited  the  plaintiffs  to  the  end  of  September, 
leaving  a  balance  of  886/.  12s.  Id.,  due  on  21st  oi  February,  in  the  plaintiff's 
favour,  which  they  transferred  to  the  credit  of  the  general  account.  At  the 
bottom  of  the  credit  note  was  written,  "Above  is  the  credit  note  of  the  loss  per 
Vrow  Elizabeth,  1155/.  3s.  lOc/.,  but  without  our  prejudice,  until  in  cash  from 
the  underwriters."  On  the  21st,  1836,  the  plaintilfs  acknowledged  the  receipt 
of  these  accounts,  and  stated  that  they  would  be  examined.  On  the  26th  of 
November,  Douglas,  Anderson  S)'  Co.  stopped  payment,  and  as  soon  as  the 
plaintiffs  were  aware  of  this  circumstance,  they  demanded  payment  of  the 
underwriters,  and,  amongst  others,  of  the  defendant,  which  being  refused,  the 
present  action  was  brought.  At  the  trial,  several  insurance  brokers  were 
r  *fififi  1  ^'I'l^'J'  ^^'ho  stated  the  usage  at  Lloyd^s  as  to  *setdements  between 
L  -^  the  underwriters  and  brokers  to  be  such  as  were  stated  in  the 

former  cases,  and  it  was  also  stated  by  some  of  them  to  be  well  known  at 
Liverpool,  as  well  as  in  London.  It  was  contended  for  the  plaintiffs,  on  the 
authority  of  Russel  v.  Bangley,  and  Scott  v.  Irving,  that  the  set-off  between 
the  brokers  and  the  underwriter  was  not  binding  on  the  plaintiffs,  who  were 
not  expressly  shown  to  have  any  knowledge  of  the  usage ;  and  also  that  the 
memorandum  at  the  foot  of  the  credit  note  showed  that  the  brokers  did  not  treat 
the  settlement  as  being  conclusive,  as  a  payment  to  them  from  the  underwriters. 

The  Lord  Chief  Baron,  in  summing  up,  expressed  his  opinion  that  the 
notion  had  been  pushed  too  far  about  the  actual  payment  in  cash,  and  that  it 
appeared  to  him  that  if  one  man  has  to  pay  another  money  on  account  of  his 
principal,  and  there  is  money  due  to  him  from  such  other  person,  it  makes  no 
difference  to  the  principal  whether  there  is  an  interchange  of  bank  notes,  or  a 


THE    ASSURERS,   ETC.  313 

mere  transfi;r  of  accounts  from  one  side  to  the  other,  and  that  it  is  equally  a 
payment,  if  it  be  done  without  fraud.  He,  however,  left  the  whole  facts  to  the 
jury,  and  directed  them  to  consider  whether  parties  making  insurances  for  their 
own  benefit  through  an  agent,  must  not  know  what  is  the  habit  of  dealing 
between  the  broker  and  the  underwriter ;  and  whether  the  authority  to  settle 
must  not  mean  that  the  broker  should  settle  in  the  same  way  as  is  the  custom 
to  settle  with  underwriters  With  respect  to  the  memorandum  at  the  foot 
of  the  credit  note,  his  Lordship  tliought  that  all  which  it  imputed  was  this, — 
that  inasmuch  as  the  account  had  not  then  been  adjusted  by  all  the  underwriters, 
the  broker  allowing  the  assured  to  draw  for  the  whole  amount  of  the  loss  in  the 
meantime,  did  so  without  prejudice  to  their  rights,  in  case  the  others  should 
not  pay  or  settle  on  account  with  them.  The  jury  found  their  verdict  for  the 
defendant.  A  rule  7iisi  having  been  obtained  for  a  new  trial,  after  the  argument 
at  the  Bar,  the  Court  took  time  to  consider  their  judgment,  which  was  after- 
wards delivered  by  Lord  Minger,  C.  B.  His  Lordship,  *after  p  ..-p^  -, 
detailing  the  facts  of  the  case,  said,  "The  Court  has  taken  the  •-  -• 

whole  argument  into  full  consideration,  and  has  come  to  the  conclusion,  that 
there  was  evidence  of  the  settlement  in  account;  that  there  was  no  misdirection 
upon  the  letter,  the  meaning  of  which,  as  part  of  a  mercantile  correspondence, 
was  left  to  the  judgment  of  a  jury  of  merchants,  nor  was  it  material  to  the 
issue  ;  and  finally  that  even  if  the  custom  was  not  specifically  proved  as  alleged, 
or  if  it  was  not  proved  that  the  plaintifl's  had  a  precise  knowledge  of  the  custom 
as  alleged,  yet  there  was  sufficient  evidence  of  a  custom  between  the  brokers 
and  underwriters,  to  make  settlements  in  account,  by  taking  credits  as  payments, 
and  also  of  the  knowledge  of  the  plaintiffs  of  such  a  custom,  and  of  their  author- 
izing the  brokers  to  settle  with  the  underwriters,  and  to  give  them,  the  plain- 
tiffs, credit  on  account  for  the  loss,  and  to  permit  them  to  draw  on  the  brokers 
for  the  amount."  His  Lordship  then  went  on  to  say,  that  by  this  decision  the 
Court  must  not  be  considered  as  overruling  any  case  deciding  that  where  an 
agent  is  employed  by  his  principal  to  receive  money,  and  pay  it  over  to  him, 
the  agent  does  not  thereby  acquire  any  authority  to  pay  a  demand  of  his  own 
upon  the  debtor,  by  a  set-ofi'  in  account  with  him,  and  concluded  by  laying 
down  the  general  rule  in  the  terms  I  have  adopted  at  the  commencement  of  this 
inquiry,  [a) 

In  the  case  of  Gibson  v.  Winter,  {b)  (which  was  decided  before  the  case  of 
Stewart  v.  Abcrdein)  in  which  a  broker  in  whose  name  a  policy  of  insurance 
under  seal  was  made,  brought  an  action  of  covenant,  and  the  defendants  pleaded 
payment  to  the  plaintiff  according  to  the  term  and  effect  of  the  policy,  and  the 
proof  was,  that  after  the  loss  happened,  the  assurers  paid  the  amount  to  the 
broker  by  allowing  him  credit  for  premiums  due  from  him  to  them,  it  was  held, 
that  although  this  was  no  payment  as  between  the  assured  and  the  assurers,  it 
was  a  good  payment  as  between  the  plaintiff  on  the  record  and  the  defendants; 
for  a  trustee  suing  as  a  ^plaintiff  in  a  Court  of  Law,  must  be  treated  r-  ^^.0.0  -\ 
in  all  respects  as  a  party  to  the  cause,  and  any  defence  against  him  L  J 

is  a  defence  against  the  cestui  que  trust  who  uses  his  name.  But  the  principle 
of  law,  whereby  the  setting  off  a  debt  from  the  broker  to  the  underwriter  has 
been,  under  the  above-mentioned  circumstances,  held  to  operate  as  a  payment 
to  the  assured  by  the  underwriter,  is  altogether  dependent  on  the  circumstance 
of  the  broker  being  agent  to  the  assured,  as  well  as  to  the  underwriter.  And, 
therefore,  in  tlie  case  of  Jicey  v.  Fernie,  (c)  on  a  policy  of  assurance  on  a  life, 
when  the  premium  became  due  on  the  15th  day  of  March^  but  was  not  paid 

(a)  See  pag  558.  {h)   5  13.  &  Ad.  96. 

(c)  7  M.  &  W.  151. 


314  OF    FRAUD    IN    POLICIES. 

until  tlie  12th  oi  Aprils  when  the  country  ajrent  of  tJie  insurance  company  gave 
a  receipt  for  the  amount;  and  the  instructions  given  by  the  company  to  the 
awent  were,  "that  the  premium  on  every  hfe  policy  must  be  received  within 
fifteen  days  of  the  time  of  its  becoming  due ;  and  if  not  paid  within  that  time 
that  he  was  to  give  immediate  notice  to  the  office  of  that  fact,  and  in  the  event 
of  his  omitting  to  do  so,  that  his  account  would  be  debited  for  the  amount  after 
the  fifteen  days  had  expired  :  and  no  notice  was  given  to  the  company  of  the 
non-payment  of  tlie  premium  within  the  fifteen  days,  and  it  was,  therefore, 
entered  in  the  books  of  the  company  as  paid  on  the  15th  of  March,  and  the 
agent  was  debited  for  the  amount;  it  was  held  by  the  Court  of  Excliequer  that 
the  debiting  the  agent  witli  the  premium  could  not  be  considered  as  a  payment 
to  the  company  by  the  assured."  Lord  Miniver,  C.  B.,  said,  "The  Court 
concurs  with  me  in  thinking  the  verdict  must  be  supported,  and  that  this  rule, 
therefore,  cannot  be  granted.  Sir  F.  Pollock  says  very  truly,  that  at  the  trial 
I  entertained  an  impression  somewliat  favourable  to  his  view  of  the  case;  but 
that  was  at  the  time  we  were  considering  whether  the  agent  of  the  company 
mio-ht  not  be  made  the  ao-ent  of  the  assured ;  and  in  that  view  of  the  case,  if  it 
were  understood  that  payment  was  to  be  made  by  the  agent,  and  there  was  an 
r  '^CQ  ~i  agreement  on  his  part  *to  advance  the  money,  then  it  might  be 
L  J  considered  as  a  payment  on  the  day  when  it  became  due  ;  but  there 

was  no  evidence  to  shew  that  the  country  agent  of  the  company  was  the  agent 
of  the  assured,  and  I  was  of  opinion  that  he  could  not  so  be  considered.  It 
seems  to  me  that  the  provision  that  he  should  be  debited  as  if  the  premium  was 
paid,  was  to  operate  as  a  penalty  on  him ;  but  does  not  authorize  third  per- 
sons to  take  advantage  of  that  which  was  a  mere  private  arrangement  between 
the  company  and  their  agent,  for  the  purpose  of  insuring  the  due  payment  of 
all  moneys  which  were  to  be  received  by  him." 


PAl^T  IT. 

[    *570     ]  *SECTION  THE  FIRST. 

OF    FRAUD    IN    POLICIES. 

I  HAVE  endeavoured  in  the  preceding  pages  of  this  Treatise,  which  make  up 
Part  I,  to  perform  the  task  which  I  proposed  in  the  introduction  to  this  subject, 
to  go  through  the  policy,  sentence  by  sentence,  from  the  beginning;  thinldng 
that  to  be  the  best  method  of  treating  every  part  of  the  contract,  as  well  as  to 
render  tlie  reference  to  tlie  respective  principles  which  are  laid  down,  more  easy 
to  the  student  and  to  the  practical  lawyer;  the  first  part  contains  the  contract 
itself,  which  exists  between  the  assured  and  the  assurer ;  and  we  might  have 
stopped  here,  if  bona  fides  and  propriety  and  regularity  of  acting  between  the 
parties,  to  this  or  to  any  contract,  were  always  to  be  found.  Unfortunately 
the  law  in  most  cases  relating  to  express  or  implied  contracts  or  the  parts  of 
the  contracts  has  more  than  one  object  to  keep  in  view,  not  only  to  explain 
clearly  what  is  in  fact  the  real  state  of  the  contract  between  the  parties ;  but  it 
has  likewise  to  point  out  in  what  cases,  and  for  what  causes  the  policy  is  void, 
either  from  some  impropriety  or  negligence  on  the  part  of  either  or  both  of  the 
parties,  and  in  some,  it  is  needless  to  disguise  it,  the  wickedness  and  the  fraud, 
also,  either  of  the  one,  or  of  both. 


OF    FRAUD    IX    POLICIES.  315 

To  leave  lliese  general  observations,  and  to  come  at  once  to  the  contract  that 
forms  the  subject  of  our  present  inquiry.  These  imperfections  in  the  transac- 
tions of  life  between  man  and  man,  will  in  this  instance,  lead  us  naturally  to 
inquire  in  what  cases  the  assurer  may  be  relieved  and  discharged  from  his 
responsibility:  either  on  account  of  the  contract  being  *void  by  ^    ^  _. 

law,  from  its  commencement,  if,  I  mean,  it  is  illegal,  the  assured  L  '  J 
cannot  recover  according  to  the  terms  of  it,  and  the  assurer  must  generally  give 
up  the  benefit  which  he  expected.  The  late  Mr.  J.  Park  commences  this  part 
of  his  subject  with  some  very  sensible  and  suitable  remarks,  it  is  on  his  com- 
mencing his  chapter  upon  ''Fraud  in  Policies,"  (a)  he  says,  "in  treating  of 
those  causes  which  make  policies  void  from  the  beginning,  or  in  other  words, 
which  absolutely  annul  the  contract,  it  will  be  proper,  in  the  first  place,  to  con- 
sider how  far  it  will  be  alFected  by  any  degree  of  fraud.  In  every  contract 
betwixt  man  and  man,  openness  and  sincerity  are  indispensably  necessary  to 
give  it  its  due  operation ;  because  fraud  and  cunning  once  introduced,  suspicion 
soon  follows,  and  all  confidence  and  good  faith  are  at  an  end.  No  contract  can 
be  good,  unless  it  be  equal ;  that  is,  neither  side  must  have  an  advantage  by 
any  thing  of  which  the  other  is  not  aware.  This  being  admitted  of  contracts 
in  general,  it  holds  Avith  double  force  in  those  of  insurance :  because  the  under- 
■writer  computes  his  risk  entirely  from  the  account  given  by  the  person  assured, 
and  therefore,  it  is  absolutely  necessary  to  the  justice  and  validity  of  the  con- 
tract, that  this  account  be  exact  and  complete.  Accordingly,  the  learned  Judges 
of  our  Courts  of  Law,  feeling  that  the  very  essence  of  insurance  consists  in  a 
rigid  attention  to  the  purest  good  faith  and  the  strictest  integrity,  have  con- 
stantlv  held  it  is  vacated  and  annulled  by  any  the  least  shadow  of  fraud  or 
undue  concealment."  And  the  learned  author  finishes  these  admirable  obser- 
vations by  quoting  autliority  for  them  from  distinguished  writers  and  jurists  as 
well  as  laws.  (6)  One  plain  illustration  of  these  principles  is  this,  if  the  con- 
tingent event  has  happened  at  the  time  of  the  execution  of  the  policy,  to  the 
knowledge  of  one  party  only,  the  policy  is  void  on  the  ground  of  fraud.  If 
the  loss  of  a  vessel  has  happened  at  the  *time  of  the  execution  of  p  $^79  -1 
the  policy  to  the  knowledge  of  the  assured,  or  if  the  underwriter  L  -• 

knows  at  the  time  of  his  subscribing  the  policy  of  the  safe  arrival  of  the  vessel, 
it  is  clear,  that  in  both  of  these  cases  the  policy  would  be  void  on  the  ground 
of  fraud.  In  the  case  of  Mead  v.  Davison,  (a)  Lord  Denman  says,  "the 
case  of  the  Earl  of  March  v.  Pigot,  [b)  is  a  direct  authority  in  principle  in 
favour  of  the  right  to  recover,  if  the  loss  was  known  to  neither  party  at  the 
time  of  making  the  insurance.  According  to  the  same  case,  and  indeed  on  the 
plainest  general  principles,  if  the  loss  had  been  known  to  the  assured  alone  the 
policy  would  have  been  void." 

There  appears  to  be  three  distinct  cases,  in  which  the  policy  may  be  rendered 
void  by  the  assured  or  his  agent:  and  as  an  agent  is  nearly  always  employed 
by  the  assured  in  this  contract,  the  rules  respecting  agents  will  apply  here, 
where  the  agent  makes  himself  personally  liable,  but  if  he  only  acts  on  the 
false  instructions  received  from  the  assured,  the  latter  will  of  course  have  to 
suffer :  but  the  rule  will  serve  to  apply  to  either. 

The  ist  is,  "Where  he  has  made  some  statement  which  he  knew  to  be 
false."  (c) 


(d)  Park  Ins.,  vol.  i.  chap.  x.  page  403. 

(6)  4  Black.  Com.  460;  Grot,  de  jure  belli,  lib.  2,  c.  12,  s.  23;  Puff,  de  jure  nat.  lib. 
5,  c.  9,  s.  8  ;  Bynk.  quest,  jur.  p.  iv.  lib.  4,  c.  26;  Ord.  de  lou.  14,  s.  38;  I  Black.  594; 
3  Burr.  190-5;  Carter  v.  Boehm. 

(a)  3  A.  &  E.  303.  {b)  5  Burr.  2802. 

(c)  See  Polhill  v.  Walter,  3  B.  &  Ad.  114. 


316  OF    FRAUD    IN    POLICIES. 

The  2nd  is,  "Whore  he  has  stated  somelliiiig  as  true  which  lie  did  not  know 
to  be  true,  oniittinjr,  at  the  same  time,  to  <rive  such  information  to  the  oilier 
contractin<r  parly,  as  would  enable;  him  to  judge  e(|ually  with  himself,  as  to  the 
nature  and  description  of  the  risk  he  proposes  to  him  to  take,  (d) 

Mr.  J.  Park  in  his  division  of  the  cases  on  this  subject,  mentions  a  third 
instance,  though  he  admits  that  it  comes  under  the  first  head  of  the  "allegatio 
falsi :"  because,  wherever  a  person  knowingly  and  wilfully  misrepresents  any- 
thing, he  asserts  a  falsehood.  But  he  says  in  this  contract,  "he  thought  it  was 
r  *^'7'i  1  necessary,  because,  if  a  material  circumstance  *be  misrepresented, 
■-  -^  though  by  a  mistake,  the  contract  is  void  as  much  as  if  there  has 

been  actual  fraud,  for  the  underwriter  has  computed  his  risk  upon  information 
which  was  false."     And  for  this  reason  he  makes 

A  3d,  which  is  "a  misrepresentation  of  a  material  fact."  («) 

We  will,  therefore,  now  proceed  to  mention  the  cases  which  have  occurred 
under  these  respective  heads  in  their  order.  And,  firstly,  we  will  mention  those 
cases  which  come  under  the  first  head,  viz  :  "where  the  assured  or  his  a<fent 
makes  a  statement  which  he  knew  to  be  false." 

In  a  case  before  Lord  Chief  Justice  Holf,  in  the  reign  of  IVUliam  and  Mary^ 
that  learned  Judge  held,  that  if  the  goods  were  insured  as  the  goods  of  an 
Hamburghcr,  who  was  an  ally,  and  the  goods  were,  in  fact,  the  goods  of  a 
Frenchman,  who  was  an  enemy,  it  was  a  fraud,  and  that  the  insurance  was 
not  good,  (b) 

In  another  case,  of  Roberts  v.  Fonnercau,  (c)  a  letter  being  received,  stating 
that  a  ship  sailed  from  Jamaica  for  London,  on  the  24th  of  November,  after 
which  an  insurance  was  made,  and  the  agent  told  the  insurer  that  the  ship  sailed 
the  latter  end  of  December,  this  was  also  held  by  Lord  Chief  Justice  Lee  to  be 
a  fraud,  and  the  defendant  had  a  verdict  upon  this  point. 

Upon  a  special  case  reserved  for  the  opinion  of  the  Court,  in  the  case  of 
Woolmcr  v.  Minlman,  (d)  the  following  circumstances  appeared: 

It  was  an  action  on  case,  brought  for  the  recovery  of  a  total  loss,  on  a  policy 
of  insurance  made  on  goods  and  merchandises  on  board  the  ship  Bona  Fortuna, 
at  and  from  North  Bergen  to  any  ports  or  places  whatsoever,  until  her  safe 
arrival  in  London.  It  was  underwritten  thus:  "Warranted  neutral  ship  and 
property."  The  defendant  underwrote  the  policy  for  150/.  The  defendant 
pleaded  the  general  issue,  and  paid  into  Court  the  premium  received  by  him 
r  *c-4.  -1  ^^o*"  ^'^^  ^^^'^  insurance.  This  cause  came  on  to  be  tried  at  Guild- 
L  '  -J  hall  before  Lord  Mansfield;  when  it  was  admitted,  that  the  plain- 
tiff had  interest  on  board  the  ship  to  a  large  value,  to  the  amount  of  the  sum 
insured.  The  ship  with  the  goods  and  merchandises  so  laden,  and  being  on 
board  her,  after  her  departure  from  North  Bergen,  and  before  her  arrival  in 
London,  proceeding  on  her  voyage,  was,  by  the  force  of  winds  and  stormy 
weather,  wrecked,  cast  away,  and  sunk  in  the  seas ;  and  the  said  goods  and 
merchandises  were  thereby  wholly  lost.  It  was  expressly  stated,  "that  the 
ship  or  vessel,  called  the  Bona  Fortuna,  and  the  property  on  board,  at  and 
before  the  time  she  was  lost,  were  not  neutral  property,  as  warranted  by  the 
said  policy." 

Lord  Mansfield,  and  the  rest  of  the  Court,  were  of  opinion,  that  it  was  too 
clear  a  case  to  bear  an  argument.  This  was  no  contract;  for  there  was  a 
falsehood,  in  respect  of  the  condition  of  the  thing  insured  :  because  the  plaintiff 
insured  neutral  property,  and  this  was  not  neutral  property. 

(rf)  See  Smout  v.  Ilbery,  10  M.  &  W.  1.      (a)  See  Park  Ins.  p.  404. 
lb)  Skin.  327. 

(c)  Sitt.  at  Guillhall  after  Trin.  1742;  Park  Ins.  405. 

(d)  3  Burr.  1419;  1  W.  Black.  437. 


OF    FRAUD    IN    POLICIES.  317 

After  the  case  of  TVoolmer  against  Midlman  had  been  decided,  another  very 
similar  case  of  Fernandez  v.  Da  Costa,  (o)  came  on  at  Guildhall  before  Lord 
Mans/ield. 

It  was  an  action  on  a  policy  of  insurance  on  goods  laden  on  board  such  a 
ship,  warranted  a  Portuguese.  The  insurance  was  made  during  the  French 
war,  when  the  premium  would  have  been  much  higher  on  an  English  ship. 
The  plaintiff  gave  partial  evidence  of  her  being  a  Portuguese ;  and  that  she 
was  obliged,  on  account  of  the  perils  of  the  sea,  to  put  into  a  French  port,  by 
which  the  cargo  was  spoiled.  This  was  admitted  by  the  defendant,  M'ho  con- 
tended that  during  her  stay  at  the  French  port,  she  was  libelled,  and  condemned 
as  not  being  Portuguese;  and  that  although  the  goods  were  lost  by  a  different 
peril,  yet  in  fact  the  ship  was  not  Portuguese,  (being  insured  as  such,)  and 
that  this  vitiated  the  policy  ab  initio — and  tliis  was  agreed  to  be  law.  In  order 
to  prove  that  she  was  not  Portuguese,  the  defendant  produced  the  ^  ^-7^  -1 
*sentence  of  condemnation,   and  the  confirmation  thereof  in  the  ^  -^ 

courts  of  France;  and  an  answer  of  the  present  plaintiff  in  the  Court  of  Chan- 
cery here,  by  which  it  was  admitted,  that  the  ship  was  condemned  as  not 
being,  or  under  pretence  of  not  being,  Portuguese. 

Lord  Mansfield. — "As  the  sentence  is  always  general,  (without  expressing 
the  reason  of  the  condemnation.)  attested  copies  of  the  libel  ought  in  strictness 
to  have  been  produced,  to  shew  upon  what  ground  the  ship  was  libelled  against. 
But  as  the  plaintiff  has,  by  his  answer  in  Chancery,  admitted  that  she  was 
condemned  as  not  being  Portuguese;  when,  added  to  the  expression  used  in 
the  sentence  of  confirmation,  that  the  ship  was  condemned  in  the  Court  of 
Prizes,  there  is  sufficient  evidence  for  us  to  proceed  upon."  The  defendant, 
the  underwriter,  had  a  verdict. 

In  a  case  in  the  House  of  Lords,  of  Sibhald  v.  HilL  {b)  where  a  London 
merchant  insuring  at  Leith,  represented,  contrary  to  the  tact,  that  he  had 
insured  the  same  voyage  at  IJoycCs  at  the  same  premium  offered  to  the  Leith 
underwriters ;  who  accordingly  subscribed  the  policy,  confiding  in  the  skill  and 
judgment  of  the  London  underwriters :  it  was  held  that  this  misrepresentation 
avoided  the  policy,  though  it  was  not  such  as  affected  the  nature  of  the  risk. 
Lord  Eldon  said,  "that  it  appeared  to  him  settled  that,  if  a  person  meaning  to 
make  an  insurance,  exhibited  a  policy,  underwritten  by  a  person  of  skill  and 
judgment,  knowing  that  this  would  weigh  with  the  other  party,  and  disarm  the 
ordinary  prudence  exercised  in  the  common  transactions  of  life ;  and  it  turned 
out  that,  in  fact,  this  person  had  not  underwritten  the  policy,  or  had  done  so 
under  such  terms  that  he  became  under  no  obligation  to  pay  ;  this  would  vitiate 
the  policy.  The  Courts  in  this  country  would  say  that  this  was  a  fraud,  not 
on  the  ground  that  the  misrepresentation  affected  the  risk,  but  because  it  induced 
a  confidence,  without  which  the  party  would  not  have  acted." 

Secondly,  the  next  instance  in  which  fraud  will  vacate  the  policy,  p  *k7«  "i 
*is  "where  the  assured  or  his  agent,  states  something  to  be  true  •-  -^ 

which  he  does  not  know  to  be  true ;  and  at  the  same  time  omitting  to  give  such 
information  to  the  other  contracting  party,  as  would  enable  him  to  judge  equally 
with  himself  as  to  the  risk  which  he  proposes  for  him  to  take. 

Lord  Abinger,  in  the  case  of  Cornfoot  v.  Fowke,  (c)  says  "in  the  case  of 
Hodgson  V.  Richardson,  {d)  Fates,  J.,  lays  it  down  as  a  general  proposition 
that,  '  the  concealment  of  material  circumstances  vitiates  all  contracts  upon  the 
principle  of  natural  law.'  "  If  this  be  true,  can  it  be  doubted  the  false  repre- 
sentation of  a  material  circumstance  also  vitiates  a  contract.''     These  principles 

(a)  Sit.  aft.  Hil.  4  Geo.  3;  Park  Ins.  407.      (6)  2  Dow.  263. 

(c)  6  M.  &  W.  378.  Id)  1  W.  Black.  465. 


318  OX'    rUAlJD    IN    POLICIES. 

are  r,iinili:ir  to  every  person  eonvcrsant  with  the  law  of  insurance.  But  a 
pohcy  of  insurance  is  a  contract,  and  is  to  be  governed  by  the  same  principles 
as  govern  other  contracts.  When  it  is  said  to  be  a  contract  ^'•uberirme  fidei^''^ 
this  only  means  that  tlie  good  failli,  which  is  the  basis  of  all  contracts,  is  more 
especially  required  in  that  species  of  contract,  in  whicli  one  of  the  parlies  is 
necessarily  less  acquainted  with  the  details  of  the  subject  of  the  contract  than 
the  other.  Now,  nothing  is  more  certain  than  that  the  concealment,  or  mis- 
representation, whether  by  principal  or  by  agent,  by  design  or  by  mistake,  of  a 
material  fact,  however  innocently  made,  avoids  the  contract  on  the  ground  of  a 
legal  fraud."  And  a  little  further  in  his  judgment,  he  says  that  "  in  the  case  of 
Paioson  V.  TJ'alHon,  (c)  Lord  Afansjield  lays  it  down  generally,  "that  in  a 
representation  to  induce  a  party  to  make  a  contract,  it  is  equally  false  for  a  man 
to  aflirni  that  of  which  he  knows  nothing,  as  it  is  to  affirm  that  to  be  true  which 
he  knows  to  be  false."  This  maxim  is  neitlier  negatived  nor  qualified  by  the 
doctrine  laid  down  in  that  class  of  cases  derived  from  Pasley  v.  Freeman,  {d) 
Tlie  plaintiffs  in  those  cases  sought  to  charge  a  party  witli  damages  for  stating 
P  i;.K~7  n  ^l^'^*-  which  he  believed  to  be  *true,  though  he  did  not  know  it  to 
L  '  J  be  so."  His  Lordship  then  alluding  to  the  case  before  him,  con- 
tinued : — "■whether  his  concealment  was  consistent  with  good  faith  and  free 
from  moral  turpitude,  may  be  determined  by  a  reference  to  the  case  put  by 
Cicero,  in  the  third  book  of  his  Trcatiiie  de  Offidis,  which  I  the  rather  men- 
tion, because  the  sale  of  the  house  he  puts,  hypotlietically,  by  way  of  example, 
was  liable  to  an  objection  that  bears  some  analogy  to  the  present,  (a) 

"Vendat  ?edes  vir  bonus  propter  aliqua  vitia  quaj  ipse  norit  ca;teri  ignorent : 
peslilcntes  sint,  et  habeantur  salubresj  ignoretur  in  omnibus  cubiculis  apparere 
serpentesj  male  materiataj,  ruinosse :  sed  hoc  praBter  dominum  nemo  sciat: 
qua^ro,  si  hoc  emptoribus  venditor  non  dixcrit,  axlesque  vendiderit  pluris  multo, 
quam  se  venditurum  putarit,  num  id  injuste  an  improbe  fecerit.^"  He  then 
ofivcs  the  ar<rument  on  both  sides,  and  concludes  that  the  vendor  ought  not  to 
have  concealed  these  defects  in  the  house  from  the  buyer.  "Neque  enim  id 
est  celare,  quicquid  reticeas  :  sed  cum,  quod  tu  scias,  id  ignorare  emolument!  tui 
causa,  velis  eos,  quorum  intersit  id  scire."  Then  this  illustrious  moralist  gives 
his  own  opinion  of  the  moral  turpitude  of  such  a  concealment;  for  he  says  : — 
"Hoc  autem  celandi  genus  quale  sit,  et  cujus  hominis,  quis  non  videt?  Certe 
non  aperti,  non  simplicis,  non  ingenui,  non  justi,  non  boni  viri;  versuti  potius 
obscuri,  astuti,  fallacis,  malitiosi,  callidi,  veteratoris,  vafri. "  Now  the  present 
is  a  case  in  which  the  fraudulent  concealment  of  a  material  fact  by  the  prin- 
cipal, and  the  false  representation  of  the  agent,  combine  to  constitute  a  degree 
of  fraud,  even  morally  speaking,  to  sustain  the  defendant's  plea,  that  he  was 
induced  by  fraud,  covin,  and  false  representation  to  sign  the  contract." 

Let  us  now  proceed  to  refer  to  the  reported  cases  on  this  head. 

Where  in  the  case  of  Da  Costa  v.  Scandrct,  (6)  one  having  a  doubtful 
r  *^7ft  "1  ^c^c»unt  of  his  ship,  that  was  at  sea,  namely,  that  'a  ship,  described 
L  J  like  his,  was  taken,  insured  her,  without  giving  any  notice  to  the 

insurers  of  what  he  had  heard  cither  as  to  the  hazard,  or  the  circumstances, 
which  might  induce  him  to  believe  that  his  ship  was  in  great  danger,  if  not 
actually  lost.  The  insurers  bring  a  bill  for  an  injunction,  and  to  be  relieved 
against  the  insurance  as  fraudulent. 

Lord  Chancellor  Macclesfield. — "The  insured  has  not  dealt  fairly  with  the 
insurers  in  this  case :  he  ought  to  have  disclosed  to  them  what  intellisfence  he. 


(c)  Cowper,  785.  (d)  3  T.  R.  51. 

(a)  In  Cornfoot  v.  Fowke,  "the  adjoining  house  to  the  one  the  subject  of  action  was  a 
notorious  brothel."  (6)  In  Chancery,  2  P.  Wms.  170. 


OF    FRAUD    IN    TOLICIES.  319 

had  of  the  ship's  being  in  danger,  and  which  might  induce  him,  at  least,  to  fear 
that  it  was  lost,  though  he  had  no  certain  account  of  it.  For  if  this  circum- 
stance had  been  discovered,  it  is  impossible  to  think,  that  the  insurers  would 
have  insured  the  ship  at  so  small  a  premium  as  they  have  done;  but  either 
would  not  have  insured  at  all,  or  would  have  insisted  on  a  larger  premium,  so 
that  the  concealment  of  this  intelligence  is  a  fraud."  Whereupon  the  policy 
was  decreed  to  be  delivered  up  with  costs,  but  the  premium  to  be  paid  back, 
and  allowed  out  of  the  costs. 

In  another  case  of  Seaman  v.  Fonnereau,  (d)  it  appeared,  that  on  the  25th  of 
August,  1740,  the  defendant  underwrote  a  policy  from  Carolina  to  Holland. 
It  came  out  in  evidence,  that  the  agent  for  the  plaintiff  had,  on  the  23rd  of 
August.,  (two  days  before  the  insurance  was  made,)  received  a  letter  from 
C'owes,  dated  the  21st  of  August,  wherein  it  is  said: — ''On  the  12th  of  this 
month,  I  was  in  company  with  the  ship  Davy  (the  ship  in  question:)  at  twelve 
at  night  lost  sight  of  her  all  at  once;  the  captain  spoke  to  me  the  day  before 
that  he  was  leaky,  and  the  next  day  we  had  a  hard  gale."  The  ship,  how- 
ever, continued  her  voyage  till  the  19th  of  August,  when  she  was  taken  by 
the  Spaniards ;  and  there  was  no  pretence  of  any  knowledge  of  the  actual  loss 
at  the  time  of  the  insurance,  but  it  was  made  in  consequence  of  a  letter  received 
that  day  from  the  plaintiff  abroad,  dated  the  27th  June  before. 

*Lord  Chief  Justice  Lee  declared,  '-that  as  these  are  contracts  p  ¥-70  ~| 
upon  chance,   each   party  ou^ht  to  know  all  the  circumstances.  •-  -' 

And  he  thought  it  not  material,  that  the  loss  was  not  such  an  one  as  the  letter 
imported ;  for  those  things  are  to  be  considered  in  the  situation  of  them  at  the 
time  of  the  contract,  and  not  to  be  judged  of  by  subsequent  events.  He  there- 
fore thought  it  a  strong  case  for  the  defendant. "    The  jury  found  accordingly,  (a) 

2.  But  it  was  held  in  the  case  of  Foley  v.  Moline,  (6)  the  time  of  the  ship's 
sailing  is  not  always  material  to  be  communicated,  unless  the  sliip  be  a  missing 
ship.     Or  unless  another  ship  which  sailed  after  lier  has  arrived  first. 

In  the  case  of  Kirby  v.  Smith,  ic)  where  the  owner  of  the  ship  Ocean, 
having  sailed  in  another  vessel  from  Elsineur  to  this  country  six  hours  after  the 
Ocean  had  sailed  for  the  same  place,  on  the  same  voyage,  had  met  with  bad 
weather,  and  still  arrived  before  the  Ocean,  and  then  caused  an  insurance  to  be 
made  on  that  ship  on  a  voyage  from  Elsineur  to  Hull:  it  was  held  that  the 
broker's  stating  that  the  Ocean  was  aU  well  at  Elsineur  on  the  day  on  which 
she  sailed  without  communicating  the  above  facts,  was  a  material  concealment, 
and  that  the  policy  was  void. 

And  in  another  case,  JVestbury  v.  Aherdein,  {d)  where  a  policy  of  insurance 
was  made  upon  the  ship  Kins:  George,  ''at  and  from  Malaga  to  London,  war- 
ranted to  sail  on  the  10th  October,^''  and  the  assured  communicated  to  the  under- 
writers that  the  King  George  and  another  vessel,  called  the  Fruiter,  both 
sailed  from  Malaga  on  the  10th  October,  and  the  underwriters  knew,  from  the 
entries  at  Lloyd's,  that  the  Fruiter  had  arrived  at  London  some  days  before : 
but  the  *assured  also  knew  that  the  captain  of  the  Fruiter  had  seen  p  sr^on  ~i 
the  King  George  off  Oporto  on  21st  October,  when  they  had  L  -^ 

parted  company  by  reason  of  a  gale  coming  on,  and  did  not  communicate  this 


(«?)   2  Stra.  1 1  83. 

(a)   See  also  Webster  v.  Forstcr,  1  Esp.  407.      Willis  v.  Glover,  1  N.  R.  14. 

lb)  1  Marsh.  117.  See  also  Fort  v.  Lee,  3  Taunt.  381.  Berthtoii  v.  Loughman,  2 
Stark.  58. 

(c)  1  B.  &  A.  672.  But  it  is  not  necessary  to  communicate  the  arrival  of  another  ves- 
sel when  that  circumstance  is  mentioned  in  Lloyd's  printed  list.  Friese  y.  Woodhouse,  1 
Holt,  572;  and  see  Elton  v.  Larkins,  3  Bing.  198. 

{d)  2  M.  &  W.  267. 

Vol.  VII.— W 


320  OF    FRAUD    IN    POLICIES. 

fact  to  the  underwriters  :  the  Fmifrr  arrived  on  the  30th  October,  and  the  insu- 
rance was  made  on  the  3rd  November,  tlie  Court  of  Exchequer  considered  that 
the  fact  of  the  two  vessels  being  in  safety  together  on  the  21st,  and  one  of  them 
having  arrived  five  days  without  the  other,  was  a  circumstance  material  to  be 
communicated  to  the  underwriters,  and  as  this  qiiestion  had  not  been  properly 
submitted  to  the  jury,  they  granted  a  new  trial,  upon  payment  of  costs. 

So  in  the  cases  of  Lynch  v.  Hamilton,  [a)  and  Lynch  v.  Ihirn.iford,  [b) 
where  goods  Avere  insured  "on  board  ship  or  ships"  from  the  Ccinary  islands 
to  London:  it  appeared  that  the  agent  of  the  assured,  when  lie  made  the  insu- 
rance on  the  26th  November,  knew  that  one  of  the  ships  upon  which  part  of 
the  goods  were  laden  was  called  the  President;  and  at  that  time  a  paper  was 
stuck  up  at  IJoyd's,  stating  that  "the  Howard  had  arrived  off  Dover  from 
Teneriffe;  sailed  the  24th;  on  the  27th,  off  the  Salvup;es,  fell  in  with  the 
President,  Owens,  from  Luuzarette,  deep  and  leaky :"  but  the  agent  did  not 
inform  the  underwriters  that  part  of  the  goods  of  the  assured  were  on  board 
the  Preside)it,  (it  did  not  appear  by  whom  the  paper  at  Lloyd^s  had  been  put 
up)  but  the  report  turned  out  to  be  unfounded.  The  Court  held,  that  the  agent 
ought  to  have  communicated  his  knowledge  of  the  name  of  tlie  ship,  which, 
l)eing  compared  with  the  report  at  LJoyd''s,  was  material  at  the  time,  although 
that  report  turned  out  to  be  untrue,  and  his  having  omitted  to  do  so,  the  policy 
was  thereby  avoided,  (c) 

r  *''8l  1  *^"  "^^  action  on  a  policy  of  insurance,  in  the  case  of  Hodgson 
L  J  V.  Richardson,  {a)  the  ship  was  insured  at  and  from  Genoa,  liable 

to  average ;  her  loading  consisting  of  potash,  verdigrcase,  cotton,  and  other 
perishable  commodities.  This  loading  was  put  on  board  at  I^eghorn  the  10th 
August,  and  the  vessel  had  lain  at  Genoa  about  five  months,  been  originally 
bound  for  Dublin;  but  losing  her  convoy,  she  put  into  Genoa  the  13th  of 
August,  and  lay  there  till  the  5th  of  January,  when  she  sailed.  And  the 
insurance  was  made  the  20th  of  January ;  at  which  time  these  circumstances 
were  known  to  the  assured,  but  not  communicated  to  the  underwriter.  A  few 
days  after  she  put  to  sea,  she  was  shattered  by  a  storm,  and  the  cargo  consid- 
erably damaged.  The  jury  found  a  verdict  for  the  plaintiff;  and  a  new  trial 
was  moved  for  on  this  ground,  that  the  policy  was  bad  ab  initio,  for  want  of  a 
due  disclosure  of  the  circumstances. 

Lord  Mansfield. — "The  question  is,^whether  here  was  a  sufficient  disclo- 
sure ;  that  is,  whether  the  fact  concealed  was  material  to  the  risk  run.  This 
is  a  matter  of  fact,  and  if  material  the  consequence  is  matter  of  law,  that  the 
policy  is  bad.  Now  who  can  say,  that  no  risk  was  nm,  during  the  five  months' 
stay  at  Genoa,  or  no  damage  happened  in  that  period.^  The  policy  is  founded 
on  misrepresentation:  the  ship  is  insured  "at  and  from  Genoa,  to  Dublin; 
the  adventure  to  begin  from  the  loading,  to  equip  for  this  voyage."  This 
plainly  implies,  that  Genoa  was  the  port  of  loading  :  and  at  the  trial,  all  the  wit- 
nesses said,  that  by  usage,  it  was  material  to  acquaint  the  underwriter,  whether 
the  insurance  was  to  be  at  the  commencement  or  in  the  middle  of  a  voyage." 
The  rest  of  the  Court  concurred,  and  a  new  trial  was  accordingly  granted. 

An  action  in  the  case  oi  Ratcliffe  and  another  v.  Shoolbred,  (b)  was  brought 
r  ^^fi9  1  ^^^  ^  policy  of  insurance  on  goods  on  board  the  Matty  and  Betty, 
L  -I  at  and  from  the  coast  of  Africa,  *to  her  last  discharging  port  in 

(a)   3  Taunt.  37.  (b)    14  East,  494. 

(c)  .It  may  be  doubted  whether  the  assured  can  in  any  case  effect  an  insurance  upon 
"ship  or  ships,"  without  naming  them,  if  he  be  acquainted  with  their  names?  It  would 
seem,  at  any  rate,  that  if  the  underwriter  requires  the  name,  the  assured  is  bound  to  com- 
municate it,"  if  he  knows  it.     3  Taunt.  39.  (a)   1  Black.  463 ;  an/e,  p.  576. 

(6)  Sitt.  at  Guildhall  after  Trin.  1780.     Park  Ins.  413. 


OF    FRAUD    IN    POLICIES.  321 

the  British  West  Indies.  The  objection  made  to  paying  the  loss  was,  that 
there  had  been  a  material  concealment  or  misrepresentation  of  the  true  state  or 
situation  of  the  ship  and  voyage  at  the  time  of  underwriting  the  policy.  The 
ship  had  been  sent  out  to  trade  on  the  coast  of  Africa^  with  directions  to  pro- 
ceed from  thence  to  the  British  West  Indies  and  to  stop  at  Barbadoes,  if  she 
could  get  a  sale  :  if  not,  to  proceed  to  Montego  Bay.  On  the  2nd  of  October 
she  sailed  from  St.  Thomas's  on  the  coast  of  Africa,  with  a  cargo  of  slaves, 
and  was  taken  on  the  6th  of  December  following  by  an  American  privateer. 
A  letter  was  received  by  a  house  at  Liverpool  on  the  21st*of  February,  men- 
tioning that  the  ship  was  well,  and  had  sailed  from  St.  Thomas's  on  the  2nd 
of  October.  This  information  was  communicated  next  day  to  the  plaintiffs, 
who,  in  consequence  of  it,  wrote  the  same  evening  to  two  different  brokers,  to 
get  a  new  insurance  on  the  ship,  there  having  been  one  before,  and  another  on 
the  cargo,  which  last  was  the  subject  of  the  present  action.  In  the  instructions 
to  the  brokers,  the  plaintiffs  say  nothing  of  the  ship  from  the  time  of  her  first 
sailings  but  to  one  of  the  brokers  they  wrote  thus: — "We  should  be  glad  if 
you  would  get  us  600/.  more  on  the  ship,  as  she  is  rather  long;  and  we  think 
it  not  prudent  to  run  so  large  a  risk  at  so  critical  a  time.  We  expect  to  hear 
soon  of  her."  It  had  afterwards  occurred  that  the  insurance  might  be  made,  if 
intimation  was  not  given  of  the  letter  which  had  been  received.  The  broker, 
therefore,  by  direction  of  the  plaintiffs  added  to  the  instructions : — "The  above 
ship  was  on  the  coast  the  2nd  of  October  f  but  said  nothing  of  her  having 
sailed  from  St.   Thomas's.     The  policy  was  dated  the  21st  of  March. 

Lord  Mansfield, — "The  insured  is  bound  to  represent  to  the  underwriter 
all  the  material  circumstances  of  the  ship  and  voyage.  If  he  do  not,  though 
by  accident  only,  or  neglect,  the  underwriters  are  not  liable;  a  fortiori,  if  he 
suppress  or  misrepresent  from  fraud.  The  question  is,  whether  this  be  one  of 
those  cases  which  is  affected  by  misrepresentation  or  *concealment?  p  *kqq  n 
If  the  plaintiffs  concealed  any  material  part  of  the  information  they  L  -J 

received,  it  is  a  fraud ;  and  the  insurers  are  not  liable."     The  jury  found  for  the 
defendant  agreeably  to  his  Lordship's  direction. 

So  in  M Andrews  v.  Bell,  (a)  the  underwriter  had  a  verdict,  where  the 
assured  had,  on  the  24th  of  November,  received  a  letter  from  Lisbon,  dated 
the  8th,  stating  the  ship  to  be  then  ready  to  sail,  and  did  not  make  the  insu- 
rance till  the  2nd  of  December,  and  did  not  then  communicate  the  letter. 

In  another  case,  Fillis  v.  Brutton,  (b)  the  policy  was  on  the  brig  Richard, 
at  and  from  Plymouth  to  Bristol.  Several  letters  passed  between  the  plaintiff 
and  the  broker  who  made  the  insurance  as  to  the  premium  at  which  the  insu- 
rance could  be  made  :  at  last  it  was  underwritten  four  guineas  per  cent.  The 
broker's  instructions  stated  the  ship  ready  to  sail  on  the  24th  of  December. 
The  broker  represented  to  the  underwriter  that  the  ship  was  in  port,  when  in 
fact  she  had  sailed  the  23rd  of  December. 

Lord  Mansfield  said  "that  this  was  a  material  concealment  and  misrepre- 
sentation." The  jury,  however,  hesitated  :  his  Lordship  then  laid  down  the 
following  as  general  principles: — "In  all  insurances,  it  is  essential  to  the  con- 
tract that  the  assured  should  represent  the  true  state  of  the  ship,  to  the  best  of 
his  knowledge.  On  that  information  the  underwriters  engage.  If  he  states 
that  as  a  fact  which  he  does  not  know  to  be  true,  but  only  believes  it,  it  is  the 
same  as  a  warranty.  He  is  bound  to  tell  the  underwriters  truth.  In  the  pre- 
sent insurance,  the  only  material  point  is  this — Had  the  ship  sailed,  or  was  she 
in  port.?"     Upon  this  the  jury  found  for  the  defendant,  (c) 


(a)   1  Esp.  373. 

(6)  Sitt.  at  Guildhall,  after  Hil.  Term.  1782.     Park  Ins.  414. 

(c)  See  Chausand  v.  Angerstein,  Peake,  43. 


322  OF    FRAUD    IN    POLICIES. 

And  in  a  late  case  of  7?/c/car(/s  v.  Murdoch  and  anofher,  (d)  Lord  Tenterdm 
r  ^f^S/l  "1  ^*^^'''  ^^^^^  where  a  material  part  of  a  letter  'had  Ijeen  suppressed 
L  J  by  the  agent  who  made  the  policy,  evidence  of  underwriters  was 

admissible  to  prove  that,  in  their  opinion,  the  part  concealed  was  material,  and 
aflfected  the  risk.  The  facts  were  the  following: — A  merchant,  residing  at 
Sidney,  shipped  goods  for  England,  on  board  the  ship  Cumberland,  and  by 
another  ship,  that  sailed  more  than  a  month  after  her,  wrote  to  his  agent  in 
England,  and  desired  him,  if  he  received  that  letter  before  the  Cumberland 
arrived,  to  wait  for  'thirty  days,  in  order  to  give  every  chance  for  her  arrival, 
and  then  make  an  insurance  on  die  goods.  The  letter  was  received,  and  the 
agent,  after  waiting  more  than  thirty  days,  employed  a  broker  to  make  an 
insurance,  and  handed  the  letter  to  him.  The  broker  told  the  underwriters 
when  the  Cumberland  sailed,  and  when  the  letter  ordering  the  insurance  was 
written ;  but  he  did  not  state  when  it  was  received,  nor  the  order  to  wait  thirty 
days  after  the  receipt  of  it  before  the  insurance  was  made.  'I'he  Cumberland 
never  arrived.  At  the  trial.  Lord  Tenterden  admitted  the  evidence  of  several 
underwriters,  who  deposed  that,  in  their  opinion,  the  whole  of  the  letter  ought 
to  have  been  communicated,  and  that  the  part  omitted  was  material.  The  jury 
found  for  the  defendants ;  and,  upon  a  motion  for  a  new  trial,  the  Court  held, 
that  the  evidence  of  the  underwriters'  opinion  was  properly  received  at  the 
trial,  and  that,  without  that  evidence,  the  jury  would  have  been  bound  to  have 
found  that  the  part  of  the  letter  not  communicated  to  the  underwriters  was 
material;  and  that,  consequendy,  the  policy  was  void. 

There  is  a  very  recent  case  of  M'tntosh  v.  Marshall,  (a)  The  plaintiH' 
was  owner  of  the  ship  Elizabetli,  sailing  from  St.  John's,  Neiofoundland,  to 
Liverpool.  Dwyer  was  his  correspondent  there.  Li  December,  1841,  the 
Elizabeth  was  at  St.  John's,  w^ith  cod-oU  and  blubber  on  board,  to  the  value 
of  500/.  Plaintiff  received  a  letter,  on  January  14di,  from  Dwyer,  dated 
P  ^_„_  -,  December  24th,  and  had  come,  by  steamer,  "from  Halifax,  stating 
L    '^  J  that  the  Elizabeth  was  to  sail  December  25th,  that  die  plaintiff 

might  give  her  four  or  five  days,  if  the  weather  was  favourable.  A  similar 
letter  came  by  die  Jlmelia,  which  sailed  from  .SV.  John's,  December  30th,  for 
Cork,  and  arrived  there  January  19th,  1842;  the  letter  passed  through  the 
Dublin  post-oflice  on  the  20th,  and  would  be  due  in  Liverpool  on  the  21st. 
At  the  trial,  the  letter  was  produced,  indorsed,  "Received  the  24th  January. " 
In  it  there  was  a  direction,  "You  can  allow  her  sixteen  to  twenty  days.  You 
can  run  a  reasonable  risk  to  save  insurance."  It  appeared  the  vessel  actually 
sailed  on  December  27th  ;  but  of  this  it  did  not  appear  die  plaintiff  had  been  ad- 
vised direcdy.  A  Mr.  Outerson  had,  however,  informed  plainuff,  on  'Change, 
that  he  had  letters  from  his  correspondent  at  St.  John's,  down  to  the  27th,  and 
he  had  heard  nothing  of  the  Elizabeth's  sading.  Nothing  was  done  towards 
insuring  till  26th  January,  1842,  when  instructions  were  sent  to  London  to 
insure,  stating  he  had  had  advices  from  Neivfoundlaml  to  27th  December, 
1841 ;  that  the  Elizabeth  was  to  sad  about  the  end  of  the  month  ;  that  she  was 
a  new  ship,  and  die  insurance  was  to  be  done  at  the  lowest  rate  of  the  day. 
With  diese  instructions  the  agent  went  to  Lloyd's,  and  saw  defendant.  In  the 
course  of  his  interview,  he  called  his  attention  to  a  St.  John's  shipping  list, 
which  professed  to  be  a  duplicate,  per  Amelia,  '■'■via  Cork,"  the  original 
having  been  sent  by  the  Elizabeth,  '•'■vid  IJverpool."  In  this  very  list  it  was 
stated  that  the  Elizabeth  sailed  on  the  27i\i  December,  1841;  but  it  did  not 
appear  that  the  defendant  noticed  this  fact. 


(</)   10  B.  &  C.  527.     But  see  the  observations  on  the  admission  of  the  evidence  in  this 
case  in  Campbell  v.  Rickards,  5  B.  &  Ad.  847;  ante,  p.  538. 

(o)  Tried  by  Mr.  B.  Maule,  at  Liverpool  Summer  Assizes,  1842.     MS.  penes  me. 


OF    FRAUD    IN    POLICIES.  323 

It  was  contended  for  the  defendant,  that  the  letters  saying  the  Elizabeth 
would  sail  about  the  25th  December  should  have  been  communicated,  as  vary- 
ing the  risk;  and  that  the  statement  of  there  being  advices  to  the  27th  was  not 
justified  by  the  informant  of  Mr.  Outerson,  that  he  had  not  heard  of  her  sailino-. 
Verdict  for  the  plaintiff.  («)  ** 

*In  the  case  of  Carter  v.  BoeJim,  (b)  which  was  an  insurance  p    be- 
cause upon  a  policy,  interest  or  no  interest,  without  benefit  of  sal-  L      ^®^     J 
vage.      The  insurance  was  made  l)y  the  plaintiff  for  the  benefit  of  his  brother, 
governor  George  Carter.      The  jury  found  a  verdict  for  the  plaintiff;  upon 
which  a  new  trial  was  moved  for,  on  the  ground  that  circumstances  had  not 
been  suflicicndy  disclosed.     Lord  Mansfield  reported  the  evidence  given  at  the 
trial :  by  which  it  appeared  that  it  was  a  policy  of  insurance  for  one  year, 
namely,  from  the   IGtii  of  October,  1759,  to  the  16lh  of  October,   1760,   for 
the  benefit  of  the  governor  of  Fort  Marlborough,  George  Carter,  against  the 
loss  of  Fort  Marlborough,  in  the  island  of  Sumatra,  in  the  Fast  Indies,  by 
its  being  taken  by  a  foreign  enemy.     The  event  happened.     The  fort  was  taken 
by  Count  D'Estaigne.  M'ithin  the  year.     The  first  witness  was  Cawlhorne,  the 
broker,  who  produced  the  memorandum  given  by  the  governor's  brother  (the 
plaintiff)  to  him  j  and  the  use  made  of  these  instructions  was  to  show  that  the 
insurance  was  made  for  the  benefit  of  governor   Carter,  and  to  insure  him 
against  the  taking  of  the  fort  by  a  foreign  enemy.     Both  parties  had  been  long 
in  Chancery,  and  the  depositions  there  made  on  both  sides  were  read  as  evi- 
dence upon  this  trial.     It  was  objected,  on  behalf  of  the  defendant,  to  be  a  fraud, 
by  concealment  of  circumstances  which  ought  to  have  been  disclosed  :  and  par- 
ticularly the  weakness  of  the  fort,  and  the  probability  of  its  being  attacked  by 
the  French;  which  concealment  was  offered  to  be  proved  by  two  letters.      The 
first  was  a  letter  from  the  governor  to  his  brother,  Roger  "^Carter,  his  trustee, 
and  the  plaintiff  in  this  cause;  the  second  was  from  the  governor  to  the  Fast 
India  Company. 

The  evidence  in  reply  to  this  objection,  consisted  of  three  depositions  in 
Chancery;  setting  forth,  that  the  governor  had  20,000/.  in  effects;  and  had 
only  insured  10,000/.  :  and  that  he  was  guilty  of  no  fault  in  defending  the  fort. 
The  first  of  these  depositions  was  Captain  Tryon's,  which  proved, 
that  *this  was  not  a  fort  proper  or  designed  to  resist  Furopean  L  ^^^^  J 
enemies ;  but  only  calculated  for  defence  against  the  natives  of  the  island  of 
Sumatra:  that  the  governor's  office  is  not  military,  but  only  mercantile  :  and 
that  Fort  Marlborough  is  only  a  subordinate  factory  to  Fort  St.  Geor^-e. 
There  was  no  evidence  to  the  contrary;  and  a  special' jury  found  a  verdictlbr 
the  plaintiff. 

After  argument  at  the  Bar,  upon  the  motion  for  a  new  trial,  and  time  taken 
by  the  Court  to  deliberate,  their  unanimous  opinion  was  delivered  by 

Lord  Mansfield— ^' This  is  a  motion  for  a  new  trial.  In  support  of  it  the 
counsel  for  the  defendant  contend,  that  some  circumstances  in  the  knowledo-e  of 
governor  Carter,  not  having  been  mentioned  at  the  time  the  policy  was  under- 
written, amount  to  a  concealment,  which  ought,  in  law,  to  avoid  the  policy. 
The  counsel  for  the  plaintiff  insist,  that  the  not  mentioning  these  particulars 
does  not  amount  to  a  concealment,  which  ought,  in  law,  to  avoid  the  policy ; 
either  as  a  fraud,  or  as  varying  the  contract.  1st,  It  may  be  proper  to  say 
something  in  general  of  concealments  which  avoid  a  policy.  2ndlv,  To  stale 
particularly  the  case  now  under  consideration.     3rdly,   To  examine  whether 

(a)  This  case  is  not  any  where  reported,  and  therefore  it  is  to  be  supposed  that  no  mo- 
tion was  made  to  the  Court. 

(A)  2  Burr.  1905;   1  Black.  R.  593. 


324  OF    FRAUD    IN    POLICIES. 

the  verdict  which  finds  this  pohcy  good,  aUhough  the  particulars  objected  were 
not  mentioned,  is  well  founded. 

"First.  Insurance  is  a  contract  upon  speculation.  The  special  facts,  upon 
which  the  risk  is  to  be  computed,  lie  most  commonly  in  the  knowledge  of  the 
insured  only.  The  underwriter  trusts  to  his  statement,  and  proceeds  upon 
confidence,  that  he  does  not  keep  back  any  circumstances  within  his  knowledge, 
to  mislead  the  underwriter  into  a  belief  that  the  circumstances  do  not  exist, 
and  to  induce  him  to  estimate  the  risk,  as  if  they  did  not  exist.  The  keeping 
back  such  circumstances  is  a  fraud  ;  and  therefore,  the  policy  is  void.  Although 
the  suppression  should  happen  through  mistake,  without  any  fraudulent  inten- 
tion ;  yet  still  the  underwriter  is  deceived,  and  the  policy  is  void :  because  the 
risk  run  is  really  different  from  the  risk  understood,  and  intended  to  be  run  at 

^  "1  ^^'^  ^"^'^  *°^  ^^^^  agreement.      The  policy  would  equally  bs  void 

L  J  against  the  underwriter,  if  he  concealed  anything ;  as  if  he  insured 

a  ship  on  her  voyage,  which  he  privately  knew  to  be  arrived :  and  an  action 
would  lie  to  recover  the  premium.  The  governing  principle  is  applicable  to 
all  contracts  and  dealings.  Good  faith  forbids  either  party,  by  concealing  what 
he  privately  knows,  to  draw  the  other  into  a  bargain,  from  his  ignorance  of  that 
fact,  and  his  believing  the  contrary.  But  either  party  may  be  innocently  silent 
as  to  grounds  open  to  both,  to  exercise  their  judgment  upon.  Jlliiid  est  celcire; 
aliudtacere:  neque  enim  id  est  celare  quicquid  retkeas ;  sed  cum  quod  tu 
scias,  id  ignorare,  emolumenti  tui  causa,  veils  eos,  quorum  intersit  id 
scire,  [a)  This  definition  of  concealment,  restrained  to  the  efficient  motives, 
and  precise  subject  of  any  contract,  will  generally  hold  to  make  it  void,  in 
favour  of  the  party  misled  by  his  ignorance  of  the  thing  concealed.  There  are 
many  matters,  as  to  which  the  insured  may  be  innocently  silent;  he  need  not 
mention  what  the  underwriter  knows,  scientia  utrinque  par  pares  contrahentes 
facit.  An  underwriter  cannot  insist  that  the  policy  is  void,  because  the  insured 
did  not  tell  him  what  he  actually  knew,  what  way  soever  he  came  to  the  know- 
ledge. The  insured  need  not  mention  what  the  underwriter  ought  to  know ; 
what  he  takes  upon  himself  the  knowledge  of;  or  what  he  waives  being  in- 
formed of.  The  underwriter  need  not  be  told  what  lessens  the  risk  agreed,  and 
understood  to  be  run  by  the  express  terms  of  the  policy.  He  need  not  be  told 
general  topics  of  speculation  :  as  for  instance,  the  underwriter  is  bound  to  know 
every  cause  which  may  occasion  natural  perils,  as  the  difficulty  of  the  voyage, 
the  kind  of  seasons,  the  probability  of  lightning,  hurricanes,  and  earthquakes. 
He  is  bound  to  know  every  cause  which  may  occasion  political  perils,  from  the 
rupture  of  states,  from  war,  and  the  various  operations  of  war.  He  is  bound 
to  know  the  probability  of  safety,  from  the  continuance  and  return  of  peace, 
from  the  imbecility  of  the  enemy,  through  the  weakness  of  their  councils,  or 
r  -fi«Q  1  ^'^^^^  \v?a\i  of  ^strength."  If  an  underwriter  insure  private  ships 
|_  089  J  ^^  ^^^^^  ^^  gg^^  ^^j  ^^  shore  from  ports  to  ports,  and  from  places 
to  places,  any  where,  he  need  not  be  told  the  secret  enterprises  upon  which 
they  are  destined,  because  he  knows  some  expedition  must  be  in  view :  and 
from  the  nature  of  his  contract,  he  waives  the  information,  without  being  told. 
If  he  insure  for  three  years,  he  need  not  be  told  any  circumstance  to  shew  it 
may  be  over  in  two ;  or,  if  he  insure  a  voyage  with  liberty  of  deviation,  he 
need  not  be  told  what  tends  to  shew  there  will  be  no  deviation.  Men  argue 
differently,  from  natural  phenomena,  and  political  appearances ;  they  have  dif- 
ferent capacities,  different  degrees  of  knowledge,  and  different  intelligence. 
But  the  means  of  information  and  judging  are  open  to  both :  each  professes  to 
act  from  his  own  skill  and  sagacity,  and  therefore  neither  need  to  communicate 

(a)  Cicero  de  Offiiciis,  lib.  3,  c.  12,  13;  see  ante,  p.  577. 


OF    FRAUD    IN    POLICIES.  325 

to  the  other.  The  reason  of  the  rule,  which  obliges  the  parties  to  disclose,  is 
to  prevent  fraud,  and  encourage  good  faith,  it  is  adapted  to  such  facts  as  vary 
the  nature  of  the  contract,  which  one  privately  knows,  and  the  other  is  io-no- 
rant  of,  and  has  no  reason  to  suspect.  The  question,  therefore,  must  always 
be,  "whether  there  was,  under  all  the  circumstances,  at  the  time  the  policy 
was  underwritten,  a  fair  statement,  or  a  concealment :  fraudulent,  if  designed, 
or,  though  not  designed,  varying  materially  the  object  of  the  policy,  and  chang- 
ing the  risk  understood  to  be  run."  (a) 

"2ndly.  This  brings  me,  in  the  second  place,  to  state  the  case  now  under 
consideration.  The  policy  is  against  tlie  loss  of  Fort  Marlborough,  from 
being  destroyed  by,  taken  by,  or  ^surrendered  unto  any  European  p  ^,_p„  -, 
enemy,  between  the  16th  of  October,  1759,  and  the  16th  of  Octo-  L  '^^"  J 
ber,  1760.  The  underwriter  knew  at  the  time  that  the  policy  was  to  indemnify, 
to  that  amount,  George  Carter,  the  governor  of  Fort  Marlborough.,  in  case  the 
event  insured  against  should  happen.  The  governor's  instructions  for  the  insu- 
rance, bearing  date  at  Fort  Marlborough,  the  22nd  of  September,  1759,  were 
laid  before  the  underwriter.  Two  actions  upon  this  policy  were  tried  before 
me  in  the  year  1762.  The  defendants  then  knew  of  a  letter  written  to  the 
East  India  Company,  which  the  company  offered  to  put  into  my  hands,  but 
would  not  deliver  it  to  the  parties,  because  it  contained  some  matters  which 
they  did  not  think  proper  to  be  made  public.  An  objection  occurred  to  me  at 
the  trial,  whether  a  policy  against  the  loss  of  Fort  Marlborough,  for  the  benefit 
of  the  governor,  was  good,  upon  the  principle  which  does  not  allow  a  sailor 
to  insure  his  wages.  But  considering  that  this  place,  though  called  a  fort,  was 
really  but  a  factory,  or  settlement  for  trade,  and  that  he,  though  called  a  gov- 
ernor, was  really  but  a  merchant,  considering,  too,  that  the  law  allows  a  captain 
of  a  ship  to  insure  goods  which  he  has  on  board,  or  his  share  in  the  ship,  if 
he  be  a  part-owner ;  and  the  captain  of  a  privateer,  if  he  be  a  part-owner,  to 
insure  his  share :  considering  also,  that  the  objection  could  not,  upon  any 
ground  of  justice,  be  m.ade  by  the  underwriter,  who  knew  him  to  be  governor 
at  the  time  he  took  the  premium ;  and,  as  with  regard  to  principles  of  public 
convenience,  the  case  so  seldom  happens,  (I  never  saw  one  before,)  any  danger 
from  the  example  is  litde  to  be  apprehended  :  I  did  not  think  myself  warranted, 
upon  that  point,  to  nonsuit  the  plaintiff";  especially  as  the  objection  did  not 
come  from,  the  Bar.  Though  this  point  was  mentioned  at  the  last  trial,  it  was 
not  insisted  upon;  nor  has  it  been  seriously  argued,  upon  this  motion,  as  suffi- 
cient alone  to  vacate  the  policy ;  and  if  it  had,  we  are  all  of  opinion  that  we 
are  not  warranted  to  say  that  it  is  void  upon  this  account.  Upon  the  plaintiff's 
obtaining  the  two  former  verdicts,  the  underwriters  went  into  a  Court  of  Equity, 
where  they  have  *had  an  opportunity  to  sift  everything  to  the  r-  ^r.Q^  -i 
bottom,  to  get  every  discovery  from  the  governor  and  his  brother,  L  J 

and  to  examine  any  witnesses  that  were  upon  the  spot.  At  last,  after  the  fullest 
investigation  of  every  kind,  the  present  action  came  on  to  be  tried  at  the  sit- 
tings after  last  Term.  The  plaintiff  proved  without  contradiction,  that  the  place 
called  Bcncoolen  or  Fort  Marlborough,  is  a  factory  or  settlement,  but  no  mili- 
tary fort  or  fortress ;  that  it  was  not  established  for  a  place  of  arms  or  defence 

(fl)  Within  this  principle  Lord  EUenborough  was  of  opinion,  that  it  was  not  necessary, 
where  an  insurance  was  made  on  the  homeward  voyage,  to  communicate  a  letter  from  the 
captain,  stating  the  damages  he  had  encountered  on  the  outward  voyage,  and  describing  the 
ship  as  being  then  unseaworthy,  and  standing  in  need  of  a  great  many  repairs,  as  governing 
the  time  when  the  ship  would  be  able  to  sail ;  for  if  this  were  so,  said  his  Lordship,  it  would 
be  necessary  in  all  cases  to  inform  the  underwriters  when  any  repairs  are  wanting.  Beck- 
with  V.  Sydebotham,  1  Camp.  116.  And  see  also,  ante,  p.  133,  the  case  of  Shoolbred  v. 
Nutt,  and  of  Hay  ward  v.  Rogers,  ante,  p.  134,  and  Long  v.  Duff,  2  Bos.  &  Pull.  209. 


326  OF    FRAUD    IN    POLICIES. 

against  the  attacks  of  an  European  enemy,  but  merely  for  the  purpose  of  trade, 
and  of  defence  against  the  natives ;  that  the  fort  was  only  intended  and  built 
to  keep  off  the  country  blacks  ,•  that  the  only  security  to  European  ships  of 
war  consisted  in  the  difficulty  of  the  entrance  and  navigation  of  the  river,  for 
want  of  proper  pilots,  that  the  general  state  and  condition  of  the  said  fort,  and 
of  the  strength  thereof,  were  in  general  well  known  by  most  persons  conversant 
or  acquainted  with  Indian  affairs,  of  the  state  of  the  Company's  factories  or 
settlements ;  and  could  not  keep  secret  or  concealed  from  persons  who  should 
endeavour,  by  proper  inquiry,  to  inform  themselves ;  that  there  were  no  appre- 
hensions or  intelligence  of  any  attack  by  the  French;  until  they  attacked  Nuttal, 
in  February,  1760;  that  on  the  8th  of  February,  1700,  there  was  no  suspi- 
cion of  any  design  by  the  French;  that  the  governor  at  that  time  bought  of  the 
witness  goods  to  the  value  of  4,000/.,  and  had  goods  to  the  value  of  above 
20,000/.,  and  then  dealt  for  50,000/.  and  upwards ;  that  on  the  1st  of  .fij)ril, 
1760,  the  fort  was  attacked  by  a  French  man-of-war  of  sixty-four  guns,  and 
a  frigate  of  twenty  guns,  under  the  Compte  D'Estaingc,  brought  in  by  Dutch 
pilots,  was  unavoidably  taken,  and  afterwards  delivered  to  the  Dutch,  the  pri- 
soners being  sent  to  Batavia.  On  the  part  of  the  defendant,  after  all  the 
opportunities  of  inquiry,  no  evidence  was  offered  that  the  French  ever  had  any 
design  upon  Fort  Marlborough  before  the  end  of  March,  1760,  or  that  there 
was  the  least  intelligence  or  alarm  that  they  might  make  the  attempt  till  the 
taking  of  A7///f//,  in  the  year  1760.  They  did  not  offer  to  disprove  the  evi- 
r  *fsq9  1  ^^"'^'^  ^^^^^  *^^^  governor  had  acted,  as  in  full  security,  long  after 
L  J  the  month  of  September,  1759,  and  had  turned  his  money  into 

goods  so  late  as  the  8th  of  February,  1760.  There  was  no  attempt  to  shew 
that  he  had  not  lost  by  the  capture  very  considerably  beyond  the  value  of  his 
insurance.  But  the  defendant  relied  upon  a  letter  written  to  the  East  India 
Company,  bearing  date  the  16th  of  September,  1759,  which  was  sent  to  Eng- 
land by  the  Pitt,  C'aptain  JVilson,  who  arrived  in  May,  1760,  together  with 
the  instructions  for  insuring,  and  also  a  letter  bearing  date  the  '<i2nd  of  Septem- 
ber, 1759,  sent  to  the  plaintifT  by  the  same  conveyance,  and  at  the  same  time 
(which  letters  his  Lordship  repeated.)  They  relied,  too,  upon  the  cross-ex- 
amination of  the  broker  who  negotiated  the  policy,  that,  in  his  opinion,  these 
letters  ought  to  have  been  produced,  or  the  contents  disclosed;  and  that  if  they 
had,  the  policy  would  not  have  been  underwritten.  The  defendant's  counsel 
contended  at  the  trial,  as  they  have  done  upon  this  motion,  that  the  policy  Avas 
void:  1st,  Because  the*  state  and  condition  of  the  fort  mentioned  in  the  gov- 
ernor's letter  to  the  East  India  Company  was  not  disclosed.  2ndly,  Because 
he  did  not  disclose  that  the  French,  not  being  in  a  condition  to  relieve  their 
friends  upon  the  coast,  were  most  likely  to  make  an  attack  upon  this  settlement, 
rather  than  remain  idle.  3rdly,  That  he  had  not  disclosed  his  having  received 
a  letter  of  the  4th  of  February,  1759,  from  which  it  seemed  that  the  French 
had  a  design  to  take  this  settlement  by  surprise' the  year  before.  They  also 
contended,  that  the  opinion  of  the  broker  was  almost  decisive.  The  whole 
was  laid  before  the  jury,  who  found  for  the  plaintiff. 

"Thirdly.  It  remains  to  consider  these  objections,  and  to  examine  whether 
this  verdict  is  well  founded.  To  this  purpose,  it  is  necessary  to  consider  the 
nature  of  the  contract  at  the  time  it  was  made.  The  policy  was  signed  in  May, 
1760.  The  contingency  was  whether  Fort  Marlborough  was  or  would  be 
taken,  by  an  European  enemy  between  October,  1759,  and  October,  1760. 
The  computation  of  the  risk  depended  upon  the  chance,  whether  any  European 
r  *^Q*^  1  power  *would  attack  the  place  by  sea.  If  they  did,  it  was  incapa- 
L  -^  ble  of  resistance.     The  underwriter  at  London,  in  May,  1760, 

could  judge  much  better  of  the  probability  of  the  contingency  than  governor 
Carter  could  at  Fort  Marlborough  in  September,  1759.     He  knew  the  success 


OF    FRAUD    IN    POLICIES.  327 

of  the  operations  of  the  war  in  Europe:  lie  knew  what  naval  force  the  En^rlhh 
and  French  had  sent  to  the  East  Indies.      He  knew,  from  a  comparison  of  that 
force,  whether  the  sea  was  open  to  any  such  attempt  hy  the  French.      He 
knew,  or  might  know,  every  thinw  which  was  known  at  Fort  3fcirlboroi(^h  in 
September.,  1759,  of  the  general  state  of  affairs  in  the  East  Indies,  or  the  par- 
ticular condition  of  Fort  3IarIhoroiia;h.  by  the  ship  which  brouorht  the  order 
for  the  insurance.      He  knew  that  ship  must  have  brought  manv  letters  to  the 
East  India  Company,  and  particularly  from  the  governor.      He  knew  what 
probability  there  was  of  the  Butch  committing,  or  having  committed,  hostili- 
ties.     Under  these  circumstances,  and  with  this  knowledge,  he  insures  against 
the  general  contingency  of  the  place  being  attacked  by  an  European  power. 
If  there  had  been  any  design  on  foot,  or  enterprise  begun  in  September,  1759, 
to  the  knowledge  of  the  governor,  it  would  have  varied  the  risk  understood  by 
the  underwriter,  on  account  of  his  not  being  told  of  a  particular  de.-ign  or  attack 
then  subsistins;:  and  he  estimated  the  risk  upon  the  foot  of  an  uncertain  opera- 
lion,  which  might  or  might  not  be  attempted.      But  the  governor  had  no  notice 
of  any  design  subsisting  in   September,  1759.      There  was  no  such  design  in 
fact:   the  attempt  was  made  without  premeditation,  from  the  sudden  opportu- 
nity of  a  favourable  occasion,  by  the  connivance  and  assistance  of  the  Butch, 
which  tempted  Compte  D'Estaigne  to  break  his  parole.      These  being  the  cir- 
cumstances under  which  the  contract  was  entered  into,  we  shall  be  better  able 
to  judge  of  the  objections  upon  the  foot  of  concealments.      The  first  conceal- 
ment is,  that  he  did  not  disclose  the  condition  of  the  place.     The  imderwriter 
knew  the  insurance  was  for  the  governor.      He  knew  the  governor  must  be 
acquainted  with  the  state  of  tiie  place.      He  knew  the  governor  could  not  dis- 
close *it,  consistently  with  his  duty.      He  knew  the  governor,  by  p    ^_„ 
insuring,  apprehended,  at  least,  the  possibility  of  an  attack.     With  L      ^^^     J 
this  knowledge,  without  asking  a  question,  he  underwrote,  [a)     By  so  doino-, 
he  took  the  knowledge  of  the  state  of  the  place  upon  himself.      It  was  a  matter, 
as  to  which  he  might  be  informed  various  ways  :  it  was  not  a  matter  within  the 
private  knowledge  of  the  governor  only.      But  not  to  rely  upon  that,  the  utmost 
Mdiich  can  be  contended  is,  that  the  underwriter  trusted  to  the  fort  beinsr  in  the 
condition  in  which  it  ought  to  be  :  in  like  manner  as  it  is  taken  for  granted,  that 
a  ship  insured  is  seaworthy.    What  is  that  condition.^    All  the  witnesses  agree, 
that  it  was  only  to  resist  the  natives,  and  not  an  European  force.     The  policy 
insures  against  a  total  loss,  taking  for  granted,  that  if  the  place  was  attacked,  it 
would  be  lost.      The  contingency,  therefore,  which  the  underwriter  has  insured 
against,  is,  whether  the  place  would  be  attacked  by  an  European  force ;  and 
not  whether  it  would  be  able  to  resist  such  an  attack,  if  the  ships  could  get  up 
the  river.      It  was  particulary  left  to  the  jury  to  consider,  whether  this  was  the 
contingency  in  the  contemplation  of  die  parties :  they  have  found  that  it  was. 
And  we  are  all  of  opinion,  that  in  this  respect  their  conclusion  is  aofreeable  to 
the  evidence.      The  state  and  condition  of  the  place  were  material  in  this  view 
only,  in  case  of  a  land  attack  by  the  natives. 

"The  second  concealment  is,  his  not  having  disclosed  that,  from  the  French 
not  being  able  to  relieve  their  friends  .upon  the  coast,  they  might  make  them  a 
visit.  This  is  no  part  of  the  fact  of  the  case ;  it  is  mere  speculation  of  the  gov- 
ernor, from  the  general  state  of  the  war.  The  conjecture  was  dictated  to  him 
from  his  fears.  It  is  a  bold  attempt  for  the  conquered  to  attack  the  conqueror 
in  his  own  dominions.  The  practicability  of  it,  in  this  case,  depended  upon 
the  English  naval  forces  in  those  seas,  of  which  the  underwriter  ^  ^  „  -, 
could  better  judge  at  London,  in  May,  1700,  than  the  *governor  L  -J 

could  at  Fort  Marlborough,  in  September,  1759.     The  third  concealment  is, 

(a)  See  Accord.  Vallance  v.  Dewar,  I  Camp.  503.     Ante,  p.  206. 


328  OF    FRAUD    IN    POLICIES. 

that  he  did  not  disclose  the  letter  from  Mr.  Winch  of  the  4th  of  February^ 
1759,  mentioning  the  design  of  the  French  the  year  before.  What  that  letter 
was;  how  he  mentioned  the  design;  or  upon  what  authority  he  mentioned  it; 
or  by  whom  the  design  was  supposed  to  be  imagined,  does  not  appear.  The 
defendant  has  had  every  opportunity  of  discovery;  and  nothing  has  come  out 
upon  it,  a?  to  this  letter,  which  he  thinks  makes  for  his  purpose.  The  plain- 
tiff offered  to  read  the  account  Winch  wrote  the  East  India  Company,  which 
was  objected  to ;  and  therefore,  it  was  not  read.  The  nature  of  that  intelli- 
gence, therefore,  is  very  doubtful.  But  taking  it  in  the  strongest  light,  it  is  the 
report  of  a  design  to  surprise  the  year  before ;  but  then  dropped.  This  is  a 
topic  of  mere  general  speculation,  which  made  no  part  of  the  fact  of  the  case 
upon  which  the  insurance  was  to  be  made.  It  was  said,  if  a  man  insured  a 
ship,  knowing  that  two  privateers  were  lying  in  her  way,  without  mentioning 
that  circumstance,  it  would  be  a  fraud.  I  agree  to  it.  But  if  he  knew  that  two 
privateers  had  been  there  the  year  before,  it  would  be  no  fraud,  not  to  mention 
that  circumstance :  because  it  does  not  follow  that  they  will  cruise  this  year,  at 
the  same  time,  in  the  same  place ;  or  that  they  are  in  a  condition  to  do  it.  If 
the  circumstance  of  this  design  laid  aside  had  been  mentioned,  it  would  have 
tended  rather  to  lessen  the  risk,  than  increase  it;  for  the  design  of  a  surprise, 
which  has  transpired,  and  been  laid  aside,  is  less  likely  to  be  taken  up  again ; 
especially  by  a  vanquished  enemy.  The  jury  considered  the  nature  of  the 
governor's  silence  as  to  these  particulars;  they  thought  it  innocent,  and  that 
the  omission  to  mention  them  did  not  vary  the  contract.  And  we  are  all  of 
opinion,  that,  in  this  respect,  they  judged  extremely  right.  There  is  a  silence, 
not  objected  to  at  the  trial,  nor  upon  this  motion  ;  which  might,  with  as  much 
reason,  have  been  objected  to,  as  the  two  last  omissions  ;  rather  more.  It 
appears  by  the  governor's  letter  to  the  plaintiff,  that  he  was  principally  appre- 
r  ^pio«  "1  tensive  of  a  Dutch  war.  He  *certainly  had,  what  he  thought, 
L  J  good  grounds  for  this  apprehension.      Compte  D'Estaigne  being 

piloted  by  the  Dutch,  delivering  the  fort  to  the  Dutch,  and  sending  the  prisoners 
to  Batavia,  is  a  confirmation  of  those  grounds.  Probably  the  loss  of  the  place 
was  owing  to  the  Dutch.  The  French  could  not  have  got  up  the  river  with- 
out Dutch  pilots ;  and  it  is  plain  the  whole  was  concerted  with  them.  And 
yet,  at  the  time  of  underwriting  the  policy,  there  was  no  intimation  about  the 
Dutch.  The  reason  why  tlie  counsel  have  not  objected  to  his  not  disclosing 
the  grounds  of  this  apprehension  is,  because  it  must  have  arisen  from  political 
speculation  and  general  intelligenee :  therefore,  they  agree,  it  is  not  necessary 
lo  communicate  such  things  to  the  underwriter. 

"Lastly.  Great  stress  was  laid  upon  the  opinion  of  the  broker.  But  we 
all  think  the  jury  ought  not  to  pay  the  least  regard  to  it:  it  is  mere  opinion, 
which  is  not  evidence:  it  is  opinion  after  an  event:  it  is  opinion  without  the 
least  foundation  from  any  previous  precedent  or  usage  :  it  is  an  opinion,  which, 
if  rightly  formed,  could  only  be  drawn  from  the  same  premises,  from  which 
the  Court  and  jury  were  to  determine  the  cause  :  and  therefore,  it  is  improper 
and  irrelevant  in  the  mouth  of  a  witness.  («)     There  is  no  imputation  upon  the 

(a)  See  the  case  of  Campbell  v.  Rickards,  5  B.  &  Ad.  846,  ante,  p.  538.  And  in  Durrel  v. 
Bedesly,  Holt,  285,  C.  J.  Gibbs  says,  "The  opinion  of  underwriters  on  the  materiality  of 
facts  and  the  effect  they  would  have  had  upon  the  premium,  is  not  admissible  in  evidence. 
Lord  Mansfield  and  Lord  Kenyon  discountenanced  this  evidence  of  opinion  ;  and  I  think  it 
ought  not  to  be  received.  It  is  the  province  of  a  jury  and  not  of  individual  underwriters 
to  decide  what  facts  ought  to  be  communicated.  It  is  not  a  question  of  science,  in  which 
scientific  men  will  mostly  think  alike,  but  a  question  of  opinion,  liable  to  be  governed  by  fancy 
and  in  which  the  diversity  might  be  endless.  Such  evidence  leads  to  nothing  satisfactory, 
and  ought  on  that  ground  to  be  rejected."  But  see  Chapman  v.  Walton,  10  Bing.  57,  and 
Rickards  v.  Murdock,  10  B.  &  C.  527,  ante,  p.  539. 


OF    FRAUD   IN    POLICIES.  329 

orovernor,  as  to  anv  intention  of  fraud.  By  the  same  convevance,  which 
brought  his  orders  to  insure,  he  wrote  to  the  company  every  thing  which  he 
knew  or  suspected :  he  desired  *nothing  to  be  kept  a  secret,  which  p  skq?  n 
he  wrote  either  to  them  or  his  brother.      His  subsequent  conduct,  L  J 

down  to  the  8th  of  Februarij,  1760,  shewed  that  he  thought  the  danger  very 
improbable.  The  reason  of  the  rule  against  concealment  is,  to  prevent  fraud 
and  encourage  good  faith.  If  the  defendant's  objections  were  to  prevail  in  the 
present  instance,  the  rule  would  be  turned  into  an  instrument  of  fraud.  The 
underwriter  here,  knowing  the  governor  to  be  acquainted  with  the  state  of  the 
place ;  knowing  that  he  apprehended  danger,  and  must  have  some  ground  for 
his  apprehension ;  being  told  nothing  of  either,  signed  this  policy  without  ask- 
ing a  question.  If  the  objection,  'that  he  was  not  told,'  is  sufficient  to  vacate 
it,  he  took  the  premium,  knowing  the  policy  to  be  void,  in  order  to  gain,  if  the 
alternative  turned  out  one  way ;  and  to  make  no  satisfaction,  if  it  turned  out 
the  other  :  he  drew  the  governor  into  a  false  confidence,  that  if  the  worst  should 
happen,  he  had  provided  against  total  ruin ;  knowing  at  the  same  time,  that  the 
indemnity  to  which  the  governor  trusted,  was  void.  There  was  not  a  word 
said  to  him  of  the  affairs  of  India.,  or  the  state  of  war  there,  or  the  condition  of 
Fort  Marlborough,  [a)  If  he  thought  that  omission  an  objection  at  the  time, 
he  ought  not  to  have  signed  the  policy,  with  a  secret  reserve  in  his  own  mind 
to  make  it  void :  if  he  dispensed  with  the  information,  and  did  not  think  this 
silence  an  objection  then,  he  cannot  take  it  up  now,  after  the  event.  What  has 
been  often  said  of  the  Statute  of  Frauds  may,  with  more  propriety,  be  applied 
to  every  rule  of  law,  drawn  from  principles  of  natural  equity,  to  prevent  fraud, 
*that  it  should  never  be  so  turned,  construed,  or  used,  as  to  protect,  or  be  a 
means  of  fraud. '  After  the  fullest  deliberation,  we  are  all  clear  that  the  verdict 
is  well  founded  ;  and  that  there  ought  not  to  be  a  new  trial :  consequently,  that 
the  rule  obtained  for  that  purpose  ought  to  be  discharged." 

In  the  case  of  Planche  and  another  v.  Fletcher,  (b)  the  plaintiifs,  Blanche 
and  Jaqnery.,  merchants  in  London,  insured  *goods  "on  board  the  p  *KqQ  ~i 
Swedish  ship  called  the  Mary  Magdalena,  lost  or  not  lost,  at  and  L  J 

from  London  and  Rams  gate  to  Nantz,  with  liberty  to  call  at  Ostend,  being  a 
general  ship  in  the  port  of  London  for  Nantz.''''  There  was  a  declaration  in 
the  policy,  "that  the  insurance  was  made  on  account  of  certain  persons,  carry- 
ing on  trade  under  the  name  and  firm  of  Vallee  et  Duplessis,  Monsieur  Lassau 
le  Jeune,  Gillaume  .Albert,  et  Potier  de  la  Gueide.''''  The  defendant  under- 
wrote the  policy  for  300/.,  at  three  guineas  per  cent.  The  ship's  clearances 
from  the  custom-house  in  IjOndon,  and  her  other  papers,  were  all  made  out  for 
Ostend  only,  but  the  ship  and  goods  were  intended  to  go  directly  from  London 
to  Nantz,  without  going  to  Ostend.  Bills  of  lading,  in  the  French  language, 
dated  the  18th  oi  July,  1778,  were  signed  by  the  captain  in  London,  but  pur- 
ported to  be  made  at  Ostend,  and  that  the  goods  were  shipped  there,  to  be 
delivered  at  Nantz.  The  policy  was  subscribed  by  the  defendant  on  the  7th 
oi  Jidy,  and  the  lading  was  taken  in  between  the  24th  o{  July  and  the  17th  of 
August.  The  proclamation  for  making  reprisals  on  French  ships  bore  date 
the  29th,  and  appeared  in  the  Gazette,  on  the  31st  of  July.  Two  underwri- 
ters had  signed  the  policy  after  the  proclamation,  at  the  same  premium  of  three 
guineas  :  one  on  the  31st  of  July,  and  the  other  on  the  7th  of  August.  The 
ship  sailed  on  the  24th  of  August,  and  was  taken  by  a  king's  cutter,  on  her 
way  to  Nantz.  After  her  departure  from  Gravesend,  the  captain  threw  over- 
board all  the  papers  which  he  had  received  from  the  custom-house  at  London. 
They  had  been  obliterated  by  the  custom-house  officers  at  Gravesend,  and 

(a)  Freelandv.  Glover,  7  East,  457.  (b)   Doug.  251. 


330  OF    FRAirO    IN    POLICIES. 

wero  no  longer  of  any  use.  The  ship  was  reloascd  by  the  Admiralty,  but  the 
goods  were  condemned.  The  plainlifTs  had  no  connection  or  share  in  the  ship. 
Siirli  were  the  material  facts  in  this  case,  as  they  were  stated  l)y  Lord  Mann- 
fichl  in  his  repoit,  upon  a  rule  to  show  cause  why  there  should  not  be  a  new 
trial.  The  cause  had  been  tried  at  tlie  last  sittings  at  Gnifd/iall,  and  a  verdict 
found  for  the  plaintiffs.  The  grounds  for  the  application  for  a  new  trial  were 
r  *rQn  -]  two — 1st,  That  there  was  a  fraud  on  the  ^underwriters,  the  ship 
L  -^  having  been  cleared  out  for   Oste.nd,  and  yet  never  having  been 

designed  for  that  place.  2ndly,  That  as  hostilities  were  declared  after  the 
policy  was  signed,  and  before  the  ship  sailed,  the  defendant  ought  to  have  had 
notice,  that  he  might  have  exercised  his  discretion,  whether  he  would  choose 
for  a  peace-premium  to  run  the  risk  of  capture.  Heside  the  facts  above  men- 
tioned, his  Lordship  stated,  that  the  plaintiff  had  produced  evidence  to  show, 
that  all  ships  going  with  goods  of  British  manufacture  to  France,  clear  out  for 
Ostend,  without  meaning  to  go  thither;  and  that  tliis  is  universally  understood 
by  persons  concerned  in  that  branch  of  commerce.  The  reasons  suggested  for 
clearing  out  for  Ostend,  and  afterwards  making  bills  of  lading  as  from  that 
place,  were,  that  the  light-house  duties  are  saved,  which  are  payable  when  the 
voyage  is  known  to  be  directly  down  the  channel;  and  tliat  the  French  duties 
are  less  upon  goods  from  Ostend  than  from  England. 

Lord  Mans/ield. — "This  verdict  is  impeached  upon  two  grounds — 1st,  It 
is  said  tliere  was  a  fraiul  on  the  underwriters  in  clearing  out  the  ship  for  Ostend, 
when  she  was  never  intended  to  go  thither.  But  I  think  there  was  no  fraud  on 
them — perhaps  not  on  any  body.  What  had  been  practised  in  this  case  was 
proved  to  be  the  constant  course  of  the  trade,  and  notoriously  so  to  every  body. 
The  reason  for  clearing  for  Ostend,  and  signing  bills  of  lading  as  from  thence, 
did  not  fully  appear ;  but  it  was  guessed  at.  The  Fermiers  Generaux  have 
the  management  of  the  taxes  in  France.  As  we  have  laid  a  large  duty  on 
French  goods,  the  French  may  have  done  the  same  on  ours  ;  and  it  may  be  the 
interest  of  the  farmers  to  connive  at  the  importation  of  English  commodities 
and  take  Ostend  duties,  rather  than  stop  the  trade,  by  exacting  a  tax  which 
amounts  to  a  prohibition.  But,  at  any  rate,  this  was  no  fraud  in  this  country. 
One  nation  does  not  take  notice  of  the  revenue  laws  of  another.  Witli  regard 
to  the  evasion  of  the  light-house  duties,  the  ship  was  not  liable  to  confiscation 
on  that  account.  2ndly,  The  second  objection  is,  that  the  policy  was  made 
r  *Pno  1  ^^^°''^"'  ^"'^  t'^'^  ^h'P  *sailed  after,  tlie  proclamation  for  reprisals. 
L  ^  But  every  man  in  England  and  France,  on  the  17th  of^  July, 

expected  the  immediate  commencement  of  a  war.  I  will  not  say  it  was  actu- 
ally commenced,  but  the  ambassadors  of  both  countries  were  recalled;  the 
Pallas  and  Licorne  were  taken;  the  fleets  were  at  sea;  and,  as  it  appeared 
afterwards,  were  waiting  for  each  other  to  fight.  It  does  not  appear  that  the 
goods  were  French  property;  an  Englishman  might  be  sending  his  goods  to 
France  in  a  neutral  ship.  But  it  is  indifTerent  whether  they  were  English  or 
French.  The  risk  insured  extends  to  all  captures,  and  as  two  other  under- 
writers signed  at  the  same  premium  after  the  proclamation,  it  appears  that  the 
war-risk  was  in  view  when  the  defendant  signed.  Shall  he  avail  himself  of 
an  event  which  increases  the  risk,  but  which  he  had  in  contemplation  when  he 
underwrote  the  policy  .►'  I  am  of  opinion  that  there  should  not  be  a  new  trial." 
The  three  other  Judges  concurred,  and  the  rule  was  discharged. 

So  the  Court  have  held,  in  Atkinson  v.  Jlbbott,  [a)  that,  where  the  object  of 
the  insurance  was  found  by  the  jury  to  be  meritorious,  the  policy  was  good, 
although,  in  consequence  of  expected  hostilities  with  Denmark,  an  order  of 

(a)   11  East,  135. 


OF    FRAUD    IN    POLICIES.  331 

the  King  in  council  had  issued,  prohibiting  the  clearing  out  of  any  British  ship 
to  a  Danish  port,  and  a  clearance  was  consequently  taken  out  for  a  neutral  port 
in  the  neighbourhood,  the  adventure  being  legal,  namely,  to  supply  the  British 
fleet  with  provisions,  and  not  contravening  the  spirit  of  the  order  in  council, 
which  issued  as  a  precautionary  measure  to  prevent  the  vessels  of  this  country 
from  being  detained  in  Banish  ports  in  the  event  of  hostilities.  The  false 
clearance,  too,  was  strongly  urged  as  an  objection  to  the  policy;  but  Lord 
Ellenborough  and  Mr.  Justice  Le  Blanc  both  declared  that  the  mere  circum- 
stance of  taking  a  clearance  to  a  place  where  a  ship  does  not  intend  to  go,  does 
not  make  the  voyage  illegal,  so  as  to  vacate  the  policy.  The  statute  of  13  &; 
14  Charles  2,  c.  U,  s.  3,  imposes  a  penalty  of  100/.  for  taking  ^  ^„„,  -. 
*out  a  false  clearance,  but  does  not  render  the  voyage  illegal.     That  L  J 

was  determined,  said  Lord  Ellenborough^  in  Blanche  v.  Fletcher^  though  the 
statute  Avas  not  referred  to. 

A  similar  decision  was  made  in  the  case  of  Meyne  v.  Walter,  (a)  It  was 
an  action  on  a  policy  of  insurance  on  a  Fortugnese  ship,  at  and  from  Madeira, 
to  her  port  of  discharge  in  Jamaica,  with  liberty  to  touch  at  the  Leeward 
Islands.  The  defendant  underwrote  150/.  upon  it;  the  ship  was  captured  by 
a  French  privateer,  and  condemned  in  the  Court  of  Admiralty  in  France,  on 
the  ground  of  having  an  English  supercargo  on  board.  The  action  was  lirought 
to  recover  this  loss  from  the  underwriter,  who  refused  to  pay,  alleging  that  the 
plaintiff  should  have  disclosed  to  him  that  the  supercargo  was  English.  At 
the  trial,  a  verdict  was  given  for  the  plaintifl",  upon  a  case  reserved  for  the  opin- 
ion of  the  Court,  and  containing,  in  substance,  the  facts  just  stated. 

For  the  defendant  it  was  insisted,  upon  the  argument,  that  the  agent  for  the 
insured  ought  to  have  disclosed  this  fact ;  and  that  it  was  the  more  material  in 
this  case  because  during  the  present  war  an  ordinance  passed  in  France,  simi- 
lar to  one  made  in  the  last  war,  in  1756,  which  declares  that  no  Butch  ship 
shall  be  allowed  to  take  on  board  a  supercargo  belonging  to  any  nation  at  enmity 
with  the  Court  of  France;  and  that  if  any  ship,  having  such  a  supercargo,  be 
taken,  it  siiall  be  condemned  as  lawful  prize. 

Lord  Mansfield. — "It  is  an  oppressive  and  arbitrary  rule,  and  contrary  to 
the  law  of  nations.  If  both  parties  were  ignorant  of  it,  the  underwriter  must 
run  all  risks ;  and  if  the  defendant  knew  of  such  an  edict,  it  was  his  duty  to 
inquire  if  such  a  supercargo  were  on  board.  It  must  be  a  fraudulent  conceal- 
ment of  circumstances  that  will  vitiate  a  policy.  But  it  is  remarkable  that 
neither  party  has  said  a  word  respecting  the  treaties  between  France  and  Por- 
tugal,''''    Judgment  was  accordingly  given  for  the  plaintiff. 

*Thirdly,  we  come  to  consider  one  class  of  cases,  in  which  a  ^  *fin9  "1 
misrepresentation  has  frequently  been  held  to  render  the  policy  void.  •-  J 

In  the  case  of  Flinn  v.  Headlam,  (b)  it  was  held  that,  where  an  agent  made 
a  policy  on  a  ship,  misrepresented  the  nature  of  the  cargo  which  she  was  to 
carry,  but  this  was  not  inserted  in  the  policy,  and  it  did  not  appear  that  the 
underwriter  was  induced  by  the  misrepresentation  to  accept  the  risk,  the  mis- 
representation was  not  material  and  did  not  vitiate  the  policy. 

In  the  case  of  Fawson  v.  Watson,  (c)  upon  a  rule  to  shew  cause  why  a  new 
trial  should  not  be  granted,  Lord  Mansfield  reported  as  follows: — "This  was 
an  action  upon  a  policy  of  insurance.  At  the  trial  it  appeared  in  evidence  that 
the  first  underwriter  had  the  following  instructions  shown  to  him  : — "Three 
thousand  five  hiuidred  pounds  upon  tiie  ship  Julias  Csesar,  for  Halifax,  to 
touch  at  Plymouth,  and  any  port  in  Jlmerica:  she  mounts  twelve  guns  and 


(a)  R.  R.  East,  22  Geo.  3.     Parkins.  431. 

(6)  9  B.  &  0.  693.  (c)  Cowp.  785. 


332  or    FRAUD    IN    POLICIES. 

twentv  moil."  Tliosc  instructions  were  not  asked  for,  nor  communicated  to 
tlie  dclendant:  but  iIk;  slii))  was  only  represented  (generally  to  hini  as  a  sliip  of 
force  :  and  a  thousand  pounds  had  been  done,  before  the  defendant  underwrote 
any  thinir  upon  her.  The  instructions  were  dated  the  28th  of  June,  1776,  and 
the  shi|)  sailed  on  the  23rd  of  JnljJ,  1776,  and  was  taken  by  an  Jlmericfm 
privateer.  That  at  the  time  of  her  being  taken,  she  had  on  board  six  four- 
pounders,  four  three-pounders,  three  one-pounders,  six  half-pounders,  which 
arc  called  swivels,  and  twenty -seven  men  and  boys  in  all  for  her  crew;  but  of 
them,  sixteen  only  were  men,  (not  twenty  as  the  instructions  mentioned)  and 
the  rest  boys.  But  the  witness  said,  lie  considered  her  as  being  stronger  with 
this  force,  than  if  she  had  twelve  carriage  guns  and  twenty  men :  lie  also  said, 
(whi(;h  is  a  material  circumstance)  that  there  were  neither  men  nor  guns  on 
board  at  the  time  of  the  insurance.  That  he  himself  insured  at  the  same  pie- 
r  *rm  1  "^''""?  ■  widiout  regard  or  inquiry  into  the  force  of  tlie  ship.  Other 
L  "  '  J  underwriters  also  insured  at  the  same  jiremiuni  without  any  oUier 
representation  than  that  she  was  a  ship  of  force.  That  to  every  four-pounder 
there  should  be  five  men  and  a  boy.  That  in  merchant  ships  boys  always  go 
under  the  denomination  of  men.  This  was  met  by  evidence  on  the  part  of  the 
defendant,  saying,  that  guns  meant  carriage  guns,  not  swivels;  and  men  meant 
able  men,  exclusive  of  boys.  Tiiere  were  three  causes  of  the  same  nature 
depending  upon  the  same  evidence.  The  defence  in  each  was,  that  these 
instructions  were  to  be  considered  as  a  warranty,  the  same  as  if  they  had  been 
inserted  in  the  policy  :  though  they  were  not  proved  to  have  been  shewn  to  any 
but  the  first  underwriter.  In  all  tlie  three  cases,  the  question  for  the  Court  to 
determine  is,  whether  the  instructions,  which  were  shewn  to  the  first  under- 
writer, are  to  be  considered  as  a  warranty  inserted  in  the  policy ;  or  as  a  repre- 
sentation, which  would  avoid  the  policy,  if  fraudulent.^  If  the  Court  should 
be  of  opinion,  that  the  instructions  amounted  to  a  warranty,  then  a  new  trial  is 
to  be  had  in  each  without  costs ;  otherwise  the  verdicts,  which  are  all  for  the 
plaintiffs,  are  to  stand.  At  the  trial  I  was  of  opinion,  that  it  would  be  of  very 
dangerous  consequence  to  add  a  conversation,  that  passed  at  that  time,  as  part 
of  the  written  agreement.  It  is  a  collateral  representation,  and  if  the  parties 
had  considered  it  as  a  warranty,  they  would  have  had  it  inserted  in  the  policy. 
But,  secondly,  if  these  instructions  were  to  be  considered  in  the  light  of  a 
fraudulent  misrepresentation,  they  must  be  both  material  and  fraudulent :  in 
that  light,  I  held,  that  a  misrepresentation  made  to  the  first  underwriter  ought 
to  be  considered  as  a  misrepresentation  made  to  every  one  of  them,  and  so 
would  affect  the  whole  policy.  Otherwise,  it  would  be  a  contrivance  to  deceive 
many ;  for  where  a  good  man  stands  first,  the  rest  underwrite  without  asking  a 
question :  and  if  he  be  imposed  upon,  the  rest  of  the  underwriters  are  taken  in 
by  the  same  fraud."  The  case  was  left  to  the  jury  under  that  direcUon. 
r  *fini  1  ^.ftsr  argument  at  the  Bar,  Lord  Mansfield  asked,  whether  *there 
L  -J  was  any  case  that  made  a  difference  between  a  written  and  a  parol 

representation .►^  No  answer  being  given,  his  Lordship  proceeded :  "there  is 
no  distinction  better  known  to  those  who  are  at  all  conversant  in  the  law  of 
insurance,  than  that  which  exists  between  a  warranty  or  condition,  which  makes 
part  of  a  written  policy,  and  a  representation  of  the  state  of  the  case.  Where 
it  is  a  part  of  the  written  policy  it  must  be  performed.  As  if  there  be  a  war- 
ranty of  convoy,  there  it  must  be  a  convoy;  nothing  else  will  answer  the  idea 
intended  by  the  warranty :  it  must  be  stricdy  performed  as  being  a  part  of  the 
agreement ;  for  in  the  case  of  convoy  it  might  be  said,  the  party  would  not  have 
insured  without  convoy.  But  as,  by  the  law  of  merchants,  all  dealings  must 
be  fair  and  honest,  fraud  infects  and  vitiates  every  mercantile  contract.  There- 
fore, if  there  be  fraud  in  a  representation,  it  will  avoid  the  policy,  on  account 
of  the  fraud,  but  not  on  account  of  the  non-compliance  with  any  part  of  the 


OF    FRAUD    IN'    POLICIES.  333 

agreement.  If  in  a  life  policy,  a  man  warrant  another  to  be  in  good  health, 
when  he  knows  at  the  same  time  he  is  ill  of  a  fever,  that  will  not  avoid  the 
policy  on  the  ground  of  misrepresentation,  (though  it  will  be  void  for  non-com- 
pliance with  tlie  Avarranty)  because  by  the  warranty,  the  insured  takes  tlie  risk 
upon  himself.  But  if  there  be  no  warranty,  and  he  say,  "the  man  is  in  o-ood 
health,"  when  in  fact  he  knows  him  to  be  ill,  it  is  false.  So  it  is,  if  he  do  not 
know  whether  he  be  well  or  ill;  for  it  is  equally  false  to  undertake  to  say  that 
which  he  knows  nothing  at  all  of,  as  to  say  that  is  true  which  he  knows  is  not 
true.  But  if  he  only  say  'he  believes  the  man  to  be  in  good  health,'  knowino- 
nothing  about  it,  nor  having  any  reason  to  believe  the  contrary ;  there,  though 
the  person  is  not  in  good  health,  it  will  not  avoid  the  policy,  because  the  under- 
writer then  takes  the  risk  upon  himself.  So  that  diere  cannot  be  a  clearer  dis- 
tinction than  that  Avhich  exists  between  a  warranty,  which  makes  part  of  the 
written  policy,  and  a  collateral  representation,  which,  if  false  in  a  point  of 
materiality,  makes  the  policy  void :  but  if  not  material,  it  can  hardly  ever  be 
fraudulent.  So  far  from  tlie  usage  *being  to  consider  instructions  ^  .^,„ 
as  a  part  of  the  policy,  that  parol  instructions  were  never  entered  L  """^  J 
in  a  book,  nor  written  instructions  kept  till  a  kw  years  ago,  upon  occasion  of 
several  actions  brought  by  the  insured  upon  policies,  where  the  brokers  had 
represented  many  things  they  ought  not  to  have  represented,  in  consequence  of 
which  the  plaintiffs  were  cast.  I  advised  the  insured  to  bring  an  action  against 
the  brokers,  which  they  did,  and  recovered  in  several  instances :  and  I  have 
repeatedly  at  Guildhall,  cautioned  and  recommended  it  to  the  brokers,  to  enter 
all  representations  made  by  them  in  a  book.  That  advice  has  been  followed  in 
London;  but  it  appeared  lately,  at  the  trial  of  a  cause,  that  at  Bristol,  to  this 
hour,  they  make  no  entry  in  their  books,  or  keep  any  instructions.  The  ques- 
tion then  is,  whether  in  this  policy  the  person  insuring  has  warranted  that  the 
ship  should  positively  and  literally  have  twelve  carriage  guns  and  twenty  men.? 
That  is,  whether  the  instructions  given  in  evidence  are  a  part  of  the  policy? 
Now  I  will  take  it  by  degrees.  The  two  first  underwriters  before  the  Court 
are  Watson  and  Snell.  Says  Watson,  "It  is  part  of  my  agreement  that  the 
ship  shall  sail  with  twelve  guns  and  twenty  men  :  and  it  is  so  stipulated,  that 
nothing  under  that  number  will  do  :  ten  guns  with  swivels  will  not  do."  The 
answer  to  this  is,  read  your  agreement ;  read  your  policy.  There  is  no  such 
thing  to  be  found  there.  It  is  replied  Yes,  but  in  fact  there  is ;  for  the  instruc- 
tions upon  which  the  policy  was  made,  contain  that  express  stipulation.  The 
answer  again  is,  there  never  were  any  instructions  shewn  to  Watson ;  nor  were 
any  asked  for  by  him.  What  colour  then  has  he  to  say  that  those  instructions 
are  any  part  of  his  agreement.?  It  is  said,  he  insured  upon  the  credit  of  the 
first  underwriter.  A  representation  to  the  first  underwriter  has  nothing  to  do 
with  that,  which  is  the  agreement  or  terms  of  the  policy.  No  man  who  under- 
writes a  policy,  subscribes  by  the  act  of  underwriting,  to  terms  of  which  he 
knows  nothing  :  but  he  reads  the  agreement,  and  is  governed  by  that.  Matters 
of  intelligence,  such  as  that  a  ship  is  or  is  not  missing,  are  ^things  ^  ^„^^  -, 
in  which  a  man  is  guided  by  the  name  of  a  first  underwriter,  wlio  L  "     -J 

is  a  good  man,  and  to  which  another  will  therefore  give  faith  and  credit  :  but 
not  to  a  collateral  agreement,  of  which  he  can  know  nothing,  (a)  The  ab- 
surdity is  too  glaring,  it  cannot  be.      By  extension  of  an  equitable  relief  in 


(a)  This  point,  how  far  a  representation  made  to  the  first  underwriter  shall  be  taken  to 
extend  to  all  the  rest,  was  about  to  be  discussed  in  the  case  of  Marsden  v.  Reid,  3  East, 
572.  The  facts  did  not  sufficiently  raise  the  question.  But  the  Court  seemed  inclined  to 
the  affirmative,  although  the  case  had  not  proceeded  far  enough  to  require  attention  to  Lord 
Mansfield's  distinction.  But  in  Bell  and  others  v.  Carstairs,  2  Camp.  544,  Lord  Ellen- 
borough  said,  "It  is  difficult  to  see  on  what  principle  of  law  a  representation  made  to  the 


334  OF    FRAUD    IN    POLICIES. 

cases  of  fraud,  if  a  man  is  a  knave  with  respect  to  a  first  underwriter,  and 
makes  a  false  representation  to  him  in  a  point  that  is  material ;  as  where  having 
notice  of  a  ship  being  lost,  he  says  she  was  safe  j  that  shall  affect  the  policy 
with  regard  to  all  tlie  subsequent  underwriters,  who  are  presumed  to  follow 
the  first.  How  then  do  Watson  and  Snell  underwrite  the  ship  in  question? 
Without  knowing  whether  she  had  any  force  at  all.  That  proves  the  risk  was 
equal  to  a  ship  of  no  force  at  all;  and  the  premium  was  a  vast  one;  eight 
guineas.  So  much  therefore  for  those  two  cases.  The  third  case  is  that  of 
Ewer,  who  saw  the  instructions,  with  the  representations  which  they  contained. 
Did  the  number  of  guns  induce  him  to  underwrite  the  policy.''  If  it  did,  he 
would  have  said,  put  them  into  the  policy ;  warrant  that  the  ship  shall  depart 
with  twelve  guns  and  twenty  nu^n.  AVhereas  he  does  no  such  thing,  but  takes 
the  same  premium  which  Watson  and  Snell  did,  who  had  no  notice  of  her 
having  any  force.  What  does  that  prove.''  That  he  is  paid  and  receives  a 
premium  as  if  it  were  a  ship  of  no  force  at  all.  The  representation  amounts 
to  no  more  than  this ;  I  tell  you  what  the  force  will  be,  because  it  is  so  much 
[-  ^(.f.^  -|  the  better  for  *you.  There  is  no  fraud  in  it,  because  it  is  a  repre- 
[_  "^bU7  J  gg^j^jiyi^  Q^jy  of  ^vhat,  in  the  then  state  of  the  ship,  they  thought 
would  be  the  truth.  And  in  real  truth  the  ship  sailed  with  a  larger  force  ;  for  she 
had  nine  carriage  guns,  and  six  swivels.  The  underwriters,  therefore,  had  the 
advantage  by  ttie  difference.  There  was  no  stipulation  about  what  the  weight 
of  metal  would  be.  All  the  witnesses  say,  that  she  had  more  force  than  if  she 
had  twelve  carriage  guns,  in  point  of  strength,  convenience,  and  for  the  pur- 
pose of  resistance.  The  supercargo  in  particular  says,  "he  insured  the  same 
ship  and  the  same  voyage,  for  the  same  premium,  without  saying  a  syllable 
about  the  force."  Why  then  it  was  a  matter  proper  for  the  jury  to  say,  whether 
the  representation  was  false,  or  whether  it  was  in  fact  an  insurance  as  of  a  ship 
without  force.  They  have  determined,  and  I  think  very  righdy,  that  it  was 
an  insurance  without  force.  Ewer  makes  an  objection,  that  the  representation 
ought  to  be  considered  as  inserted  in  the  policy ;  but  the  answer  to  that  is,  he 
has  determined  whether  it  should  be  inserted  in  the  policy  or  not,  by  not  insert- 
ing it  himself.  There  is  a  great  difference  whether  it  shall  be  considered  as  a 
fraud.  But  it  would  be  very  dangerous  to  permit  all  collateral  representations 
to  be  put  into  the  policy.  I  am  extremely  glad  to  hear  that  a  great  many  of 
the  underwriters  have  paid.  Mr.  Thornton  has  paid,  who  was  the  first  person 
that  saw  the  instructions.  Shall  the  rest  refuse,  then.'*  As  to  Watson  and 
Snell,  they  have  no  presence  to  refuse :  for  there  is  not  a  colour  for  the  objec- 
tion made  by  them.  As  to  Ewer,  we  are  all  satisfied  with  the  determination 
of  the  jury  against  him.  Therefore  the  rule  for  a  new  trial  must  be  dis- 
charged." 

On  the  Monday  following,  Mr.  Devenport  said,  he  was  desired  by  the  under- 
writers to  ask,  whether  it  was  the  opinion  of  the  Court,  that  to  make  written 
instructions  valid  and  binding  as  a  warranty  they  must  be  inserted  in  the  policy? 
Lord  Mansfield  answered,  that  most  undoubtedly  that  was  the  opinion  of  the 
r  *flnfl  ~i  Court:  if  a  man  warrant  that  a  *ship  shall  depart  with  twelve 
[_  J  guns,  and  it  depart  with  ten  only,  it  is  contrary  to  the  condition  of 

the  policy. 

In  the  case  of  Bize  v.  Fletcher,  (a)  which  was  an  action  on  a  policy  of 
insurance  on  the  ship  Carnatic,  East  Indiaman,  "at  and  from  Port  L' Orient 


first  underwriter  is  considered  to  be  made  to  them  who  afterwards  underwrite  the  policy. 
That  rule  being  established,  I  will  abide  by  it;  but  will  not  allow  it  to  be  extended.      You 
must  shew  the  representation  to  be  made  to  the  first  underwriter  on  the  pohcy  or  to  the 
defendant  himself."     See  Brine  v.  Featherstonc,  8  Taunt.  869. 
(a)  Doug.  284. 


OF    FRAUD    IN    POLICIES.  335 

to  the  isles  of  France  and  Bourbon,  and  to  all  or  any  ports  or  places,  where 
and  whatsoever,  in  the  East  Indies,  China,  Persia,  or  elsewhere,  beyond  the 
Cape  of  Good  Hope,  from  place  to  place ;  and  during  the  ship's  stay  and  trade 
backwards  and  forwards,  at  all  ports  and  places,  and  until  her  safe  arrival  back 
at  her  last  port  of  discharge  in  France.''^  But  at  the  same  time  that  this  policy 
was  subscribed,  there  was  a  slip  of  paper  wafered  to  it,  and  shown  to  the 
underwriters,  on  which  was  written  tlic  following  representation: — The  ship 
has  had  a  complete  repair,  and  is  now  a  fine  and  good  vessel,  three  decks. 
Intends  to  sail  in  September  or  October  next  (1776.)  It  is  to  go  to  Madeira, 
the  isles  of  France,  Pondicherry,  China,  the  isles  of  France  and  IJ Orient.''' 

The  ship  did  not  sail  till  the  6th  of  December,  1776,  and  did  not  reoch 
Pondicherry  till  the  23rd  of  July,  1777.  She  continued  there  till  the  23rd  of 
August  following,  when,  instead  of  proceeding  to  China,  she  sailed  for  Bengal, 
where  having  passed  the  winter  and  undergone  considerable  repairs,  she  sailed 
from  thence  early  in  the  year  1778,  (being  the  second  ship  that  left  the  Ganges) 
returned  to  Pondicherry,  and  after  taking  in  a  homeward  bound  cargo  at  that 
place,  proceeded  in  her  voyage  back  to  L^  Orient,  but  was  taken  in  October  in 
that  year,  by  the  Mentor  privateer.  The  usual  time  in  which  the  direct  voyage 
between  Pondicherry  and  Bengal  is  performed,  is  six  or  seven  days ;  but  the 
Carnatic  was  about  six  weeks  in  going  to  Bengal,  and  two  months  on  the  way 
back  from  thence  to  Pondicherry.  Both  going  and  returning,  she  either 
touched  at,  or  lay  off  Madras,  Masidipatam,  Visigapatam,  and  Yanon  and 
took  in  goods  at  all  those  places. 

*It  was  contended  in  this  cause,  at  the  trial,  that  the  representation  r-  */>r,q  -i 
accompanying  the  policy  restrained  the  voyage  to  the  limits  therein  L  -' 

specified.  They  produced  some  letters  from  the  owners  to  their  correspondents, 
one  of  which  was  to  the  following  effect: — "  We  doubt  not,  but  on  account  of 
the  storm  the  ship  will  be  forced  to  go  to  Bengal  to  be  laid  down,  which  cannot 
be  done  at  Pondicherry,  in  which  case  our  captain  will  have  entered  a  protest, 
which  we  will  forward  in  time  to  you."  In  a  subsequent  letter  they  say 
nothing  of  the  storm  or  leak ;  but  mention  a  diflerent  cause  for  the  ship's  going 
to  Bengal.  These  letters,  it  was  said,  raised  a  presumption  that  the  necessity 
of  going  to  Bengal  was  merely  a  pretence  devised  after  the  capture,  and  when 
the  insured  began  to  apprehend  that  the  words  of  the  policy  would  not  cover 
a  voyage  to  that  place. 

Lord  Mansfield  told  the  jury,  "that  the  first  question  was,  whether  the 
policy  was  void,  on  account  of  misrepresentation.^  Now  there  is  an  essential 
difference  between  a  warranty  and  a  representation.  The  warranty  is  a  part 
of  the  contract :  a  risk  described  in  the  policy  is  part  of  the  contract.  There 
can  be  no  warranty  by  any  collateral  representation.  The  ground  on  which  a 
representation  atfects  a  policy,  is  fraud,  the  representation  must  be  fraudulent, 
that  is,  it  must  be  false  and  material  in  respect  to  the  risk  to  be  run.  All  risks 
are  governed  by  the  nature  of  them  ;  and  the  premium  is  governed  by  the  risk. 
Where  a  representation  accompanies  an  instrument,  it  says,  "I  will  have  this 
understood  as  my  present  intention :  but  I  will  have  it  in  my  power  to  vary  it." 
The  great  question  in  this  cause  is,  whether  the  representation  was  false,  and 
that  in  a  material  instance.^  Fraud  is  found  out  by  the  materiality  of  the  point 
it  is  charged  in.  It  is  to  be  considered,  then,  whether  they  had  really  a  view 
of  going  to  China.  A  witness  has  proved  that  the  dilference  of  insurance  is  one 
per  cent,  on  going  to  Bengal,  and  not  to  China.  If  you  think  that  this  was  a 
misrepresentation  to  avoid  paying  the  one  per  cent,  you  will  find  lor  the  defend- 
ant. But  if  you  are  satisfied  that  the  real  intention,  at  the  time  of  p  ^a-itx  -\ 
*the  representation,  was  to  go  to  China,  the  plaintiff  will  be  enti-  L  J 

tied  to  your  verdict :  for  the  insured  may  change  his  intention,  to  go  to  Bengal, 
and  yet  be  protected  by  the  policy,  which  clearly  admits  of  that  voyage,  and 
Vol.  VIL— X 


336  OF    FRAUD    IN    POLICIES. 

must  l)e  understood  Iiy  botli  parties  in  a  creator  latitiidp  than  tlio  representation, 
beiiic  expressed  in  diHerenl  and  much  juorc  coniprelicn.'^ivc  terms.  If,  upon 
the  \v\\o\e  evidence,  you  shall  be  of  opinion,  that  no  fraud  was  intended,  and 
that  the  variance  between  the  intcinded  voyage,  as  described  in  the  slip  of  paper, 
and  the  actual  voyage  as  ])erfornicd  did  not  tend  to  increase  the  risk  to  the 
underwriters,  tliis  slip  of  paper  being  only  a  representation,  you  must  find  for 
the  plaintifl". "  The  jury  found  a  verdict  accordingly.  And  although  in  several 
caiiscs  upon  the  sanu!  "ship,  new  trials  were  moved  for,  and  granted;  yet  in 
this,  which  was  the  only  cause  in  which  tliere  was  a  rejjresentation,  the  verdict 
was  acquiesced  in,  and  no  motion  respecting  it  ever  was  made.  («) 

In  a  previous  part  of  this  section  it  was  laid  down,  [b)  as  that  if  a  represen- 
tation be  made  to  tlie  underwriter  of  any  circumstance  which  was  fiilse,  this, 
if  it  be  in  a  material  point,  shall  vacate  the  policy,  and  annul  the  contract, 
although  it  happened  by  mistake,  and  without  any  fraudulent  intention  or 
improper  motive  on  the  part  of  the  insured. 

In  the  case  of  Macdoivall  v.  Fraser,  {c)  which  was  an  action  on  a  policy  of 
insurance  on  the  ship  "The  Mary  and  Hannah,  from  New  York  to  Philadel- 
phia.''^ At  the  time  when  the  insurance  was  made,  which  was  in  London,  on 
the  30th  of  January,  the  l)roker  represented  the  situation  of  the  ship  to  the 
underwriter  as  follows  :  "The  Mary  and  Hannah,  a  tight  vessel,  sailed  with 
several  armed  ships,  was  seen  safe  in  the  Dchncare  on  the  11th  of  December, 
by  a  ship  which  arrived  at  New  York.'"     In  fact,  the  ship  was  lost  on  the  9lh 

^  1  oi  December^  by  running  against  a  cheveait  de  frieze,  placed  *across 

L  """'^  J  the  river.  The  cause  came  on  to  be  tried  before  Lord  7^/an.s/?e/(/ at 
GuildhaU.  The  defence  was  founded  on  the  misrepresentation  as  to  the  time 
when  the  ship  was  seen  ;  and  the  representation  and  the  day  of  the  loss  being 
proved,  the  jury  found  for  the  defendant.  A  rule  was  obtained  on  the  part  of 
the  plaintiff,  calling  upon  the  defendant  to  show  cause  why  there  should  not  be 
a  new  trial.     After  argument  at  the  Bar, 

Lord  Mansfield  said: — "The  distinction  between  a  warranty  and  a  repre- 
sentation is  perfectly  well  setded.  A  representation  must  be  fiiir  and  true.  It 
should  be  true  as  to  all  that  the  insured  knows ;  and  if  he  represents  facts  to 
the  underwriter,  without  knowing  the  truth,  he  takes  the  risk  upon  himself. 
But  the  difference  between  the  fact  as  it  turns  out,  and  as  represented,  must  be 
material.  The  case  of  the  Julius  Cxsar  was  very  different  from  this,  [d) 
The  ship  there  was  only  fitted  out  when  the  insurance  was  made.  No  guns 
nor  men  were  put  on  board.  It  was  only  said  what  was  meant  to  be  done ; 
and  Avhat  was  done,  though  different,  was  as  advantageous,  or  more  so,  than 
what  had  been  represented.  There  was  no  evidence  of  actual  fraud  in  the 
present  case,  and  no  question  of  that  sort  seemed  to  be  made.  But  there  was 
a  positive  averment  that  the  ship  was  seen  in  the  Delaivure,  on  the  11th  of 
December.  The  underwriter  was  deceived  as  to  that  fact,  and  entered  into  the 
contract  under  that  deception.  There  was  no  evidence  at  the  trial  when  she 
was  seen  in  the  Delaware,  or  in  what  condition :  but  suppose  the  fact  had 
been  explained  in  the  manner  now  suggested,  why  did  the  insured  take  upon 
him  to  compute  the  day  of  the  month  on  which  she  had  been  seen.''  Why  did 
he  not  mention  exactly  what  his  information  was,  and  leave  the  underwriter  to 
make  the  computation.  In  insurances  on  ships  at  a  great  distance,  their  being 
safe  up  to  a  certain  day  is  always  considered  as  a  very  important  circumstance. 
I  am  of  opinion  that  the  representation  concerning  the  day  was  material." 

(a)  See  Weston  v.  Eames,  1  Taunt.  115.     Robertson  v.  Majoribanks,  2  Stark.  573. 

(Jb)   Page  572,  and  ante,  p.  589,  by  Lord  Mansfield,  in  Carter  v.  Boem. 

(c)  Doug.  260. 

{d)    Vide  ante,  the  case  of  Pawson  v.  Watson,  p.  602. 


OF    FRAUD    IN    POLICIES.  337 

*A  similar  decision  was  made  by  the  same  learned  Jiidses  at  a  r-     ■„, 
period  subsequent  to  that  of  tlie  case  of  Macdoivall  and  Frascr  in  L      "  ^     j 
the  case  of  Shirley  v.  Wilkinson,  (a) 

Upon  a  motion  for  a  new  trial,  Lord  Mansfield  and  the  rest  of  the  Court 
Avere  clearly  of  opinion,  that  if  the  broker,  at  the  time  when  the  policy  is  effected, 
in  representing  to  the  underwriter  the  slate  of  the  ship,  and  the  last  intelligence 
concerning  her,  does  not  disclose  the  whole,  and  what  he  conceals  shall  appear 
material  to  the  jury,  they  ought  to  find  for  the  underwriter,  the  contract  in  such 
case  being  void;  although  the  concealment  should  have  been  innocent,  the  facts 
not  mentioned  having  appeared  immaterial  to  the  broker,  and  having  not  been 
communicated  merely  on  that  account. 

In  the  case  of  Barber  v.  Fletcher,  {b)  upon  a  motion  for  a  new  trial,  one  of 
the  grounds  stated  to  induce  the  Court  to  grant  it  was,  that  since  the  trial,  a 
material  representation,  which  had  been  made  to  Shulbred,  the  first  underwriter 
upon  the  policy,  and  which  turned  out  to  be  false,  had  been  discovered.  Shul- 
bred made  an  aff'idavit,  by  which  it  appeared,  that  when  he  signed  the  policy 
in  March,  1778,  the  broker  was  getting  several  others,  on  other  ships,  sub- 
scribed at  the  same  time,  all  belonging  to  the  same  owner,  and  said,  speaking 
of  them  all,  "which  vessels  are  expected  to  leave  the  coast  of  Africa  in  No- 
vember or  December,  1777."  In  truth,  the  vessel  in  question  had  sailed  in 
May,  1777,  and  Shulbred  swore,  that  if  he  had  known  that  circumstance,  he 
■would  not  have  signed.  There  had  been  actions  brought  against  all  the  under- 
writers on  the  policy,  except  Shulbred. 

Lord  Mansjield.—^'' It  has  certainly  been  determined  in  a  variety  of  cases, 
that  a  lepresentation  to  the  first  underwriter  extends  to  the  other,  (c)  But 
under  what  circumstances  has  the  defendant  gone  to  trial  in  this  case.^  He 
certainly  knew  what  had  been  represented  to  himself.  He  was  acquainted 
*with  Shulbred,  and  had  an  opportunity  of  asking  before  the  trial  p  *ftiQ  -\ 
what  had  been  represented  to  him.     If,  therefore,  this  evidence  is  L  J 

new,  it  is  owing  to  his  own  negligence.  But  the  representation  is  not  material; 
it  was  only  an  expectation,  and  the  underwriters  did  not  inquire  into  the  ground 
of  the  expectation.  This  was  lying  by  till  after  a  trial,  in  order  to  make  an 
objection  if  the  verdict  should  be  for  the  plaintiff."     The  rule  was  discharged. 

In  the  case  of  Hull  v.  Cooper,  [d)  where  a  policy  is  made  "at  and  from"  a 
given  place,  the  terms  of  the  instrument  seem  to  import  that  the  vessel  is  either 
at  the  place  when  the  policy  is  made,  or  will  shortly  be  there ;  and  the  insured 
cannot  be  said  to  be  guilty  of  deception  if  the  ship  be  not  at  the  place  at  the 
very  time  of  making  the  policy.  If  the  ship  do  not  arrive  for  some  time,  it  is 
a  question  for  the  jury,  whether  the  delay  materially  varied  the  risk.  And 
where  a  policy  was  made  on  the  13th  of  August,  in  London,  on  a  voyage  at 
and  from  Heligoland  to  the  Baltic,  and  the  ship  did  not  even  sail  from  the 
Thames  on  her  outward  voyage  till  the  27th,  the  question  was  left  for  the 
consideration  of  the  jury,  who  found  that  the  delay  was  not  material.  So 
where  a  broker,  on  making  a  policy  whilst  the  ship  was  on  her  outward  voy- 
age, represented  that  a  cargo  was  ready  for  her,  and  that  she  was  sure  to  be  an 
early  ship ;  this  was  held  to  amount  only  to  expressing  an  expectation  and 
belief;  and  the  underwriters  were  held  liable,  although  from  the  day  in  loading 
the  cargo  the  voyage  home  was  changed  from  a  summer  into  a  winter  risk. 

It  has  been  mentioned,  that  it  is  immaterial,  whether  the  act  be  of  the  assured 
or  of  his  agent,  this  was  shewn  in  a  case  before  the  House  of  Lords,  of  Stewart 

(a)  3  Doug.  41.  (b)   1  Doug.  305. 

(c)  Pawson  v.  Cowper,  ante,  p.  60.5.     Marsden  v.  Reid,  3  East,  572. 

(d)  14  East,  479.  Hubbard  v.  Glover,  3  Camp.  313.  See  also  Brine  v.  Featherstone, 
4  Taunt.  869.     Driscol  v.  Passmore,  1  Bos.  &  Pull.  200. 


338  OF    FRAUD    IN    POLICIES. 

V.  Dunlop.  (a)  It  came  before  the  House  on  an  appeal  from  the  Court  of 
Session  in  Scotland,  which  had  determined  in  favour  of  the  respondents,  the 

*R14  -1  ^"^lerwriters.  The  case  was  shortly  this: — "A  man  *having 
L  J  arrived  at  Greenock,  knowing  of  the  loss  of  the  ship  insured,  and 

meeting  a  friend  and  intimate  acquaintance  of  the  insured,  and  a  partner  with 
him  in  some  other  adventurers,  communicated  the  intelligence  of  the  loss  of 
the  ship  to  him,  who  desired  it  might  be  concealed.  The  same  day,  as  appears 
by  the  evidence,  the  person  who  had  received  this  information  held  a  conver- 
sation with  the  plaintiff's  clerk,  who  made  this  deposition,  that  neither  at  that 
time,  nor  at  any  other  time  of  the  said  day,  hud  he  any  conversation  whatever 
with  the  said  Mr.  Boog,  or  message  from  him,  either  in  writing  or  otherwise, 
relative  to  the  Peggy  (the  ship  insured)  nor  did  he  get  any  hint  from  him  or  any 
other  person,  relative  to  the  making  insurance  upon  her,  further  than  tlie  said 
Mr.  Boog's  asking  the  deponent  if  lie  knew  wluitlier  there  was  any  insurance 
made  upon  her,  and  if  there  was- any  account  of  her."  After  this  conversation 
the  plaintiff  desired  the  clerk  to  write  to  get  an  insurance  made,  which  he  did, 
without  stating  a  word  (at  least  it  did  not  ap{)car  that  he  stated  any)  of  this 
conversation  to  his  master.  Upon  the  whole  of  the  evidence  in  this  cause, 
although  it  did  not  appear  by  any  deposition  that  the  plaintiff  knew  of  the  loss 
of  the  ship  at  the  time  he  made  the  insurance,  the  Lords  of  Session  decreed, 
"that  the  insurance  made  by  the  plaintiff  would  not  have  been  made,  if  the 
brigantine  Henrietta  had  not  arrived  in  the  road  of  Greenock  the  day  preceding, 
and  brought  intelligence  that  the  ship  Peggy  was  taken :  and  therefore,  that 
the  policy  Avas  void."     The  House  of  Lords  confirmed  tiiis  decree. 

But  in  the  end  of  the  same  year,  a  cause  of  Fitzherhert  v.  Mather,  [b)  was 
decided  in  the  King's  Bench,  expressly  upon  the  point  of  fraud  in  the  agent ; 
for  it  appeared  that  the  insured  was  not  guilty  of  any  improper  conduct  in  the 
transaction.  In  that  case  the  circumstances  were  numerous^  and  the  Judges 
gave  their  opinions  seriatim  upon  the  question. 

io]K,  -|  It  was  an  action  on  a  policy  of  insurance  for  110/.  underwritten 
[  -615  J  ...|^^^  ^j^g  defendant  on  the  21st  of  September,  1782,  at  six  guineas 
per  cent,  on  a  cargo  of  oats  on  board  the  ship  Joseph,  lost  or  not  lost,  at  and 
from  Hartland  to  Portsmouth,  beginnin<r  the  adventure  from  the  loading  thereof 
on  board  the  said  ship  at  Hartland.  The  defendant  pleaded  the  general  issue, 
and  paid  the  premium  into  Court.  This  cause  came  on  to  be  tried  before  Mr. 
Justice  BuUer  at  Guildhall,  when  a  verdict  was  found  for  the  plaintiff,  subject 
to  the  opinion  of  the  Court  upon  the  following  case : — 

That  on  the  27th  of  July,  1782,  William  Bundock,  of  Pool,  agent  for  the 
plaintiff,  <?ontracted  with  Richard  Thomas,  of  Hartland,  a  corn  factor,  for  the 
purchase  of  five  hundred  quarters  of  oats,  to  be  consigned  to  William  Fuller,  at 
Portsmouth,  on  plaintiff's  account;  and  desired  Thomas  to  send  him  (Bun- 
dock)  a  bill  of  lading  and  invoice,  and  also  a  like  bill  of  lading  and  invoice  to 
the  plaintiff  at  Mr.  Fisher's,  at  the  Tourer,  London.  That  in  pursuance 
thereof,  Thomas  shipped  the  oats  on  board  the  ship  insured,  which  sailed  from 
JIartland  on  the  16th  of  September,  1782,  and  was  lost  the  same  day  off  the 
pier  of  Hartland.  That  on  the  16th  of  September,  1782,  Thomas  wrote  to 
the  plaintiff's  agent  at  Portsmouth,  and  informed  him  that  he  had  that  morning 
shipped  the  oats,  and  the  ship  sailed  immediately,  but  he  was  afraid  the  wind 
was  coming  to  the  westward,  and  would  force  her  back.  He  also  wrote,  on 
the  same  day,  to  Fisher,  the  plaintiff's  agent  in  London,  to  the  same  effect, 
in  order  that  he  might  insure,  adding  these  words,  "I  wish  the  whole  safe  to 
hand;  this  evening  appears  stormy." — About  six  or  seven  o'clock  the  same 


(«)  H.  of  Lords,  April  8,  1785.  (6)  1  T.  R.  12. 


OF    FRAUD    IN    POLICIES.  339 

evening-,  Thomas  heard  that  tlie  ship  was  on  shore,  and  at  six  o'clock  the  next 
mornins^  (the  17th)  he  knew  she  was  lost.  That  the  mode  of  sending  letters 
from  Harlland  to  London  is  as  follows :  the  letters  are  collected  by  a  private 
hand  about  one  or  two  o'clock  of  the  day  on  which  the  post  sets  out  from 
Biddeford^  from  which  place  it  goes  about  nine  o'clock  in  the  evening.  That 
the  16th  of  September  was  not  a  post-day:  and  the  above  letters  did  not  leave 
Hartland  till  one  o'clock  in  the  afternoon  of  the  17th,  which  was  p  ^a\a  -\ 
*the  post-day  from  Biddeford  to  London:  and  the  letters  which  L  -J 

went  from  Biddeford  by  the  post  of  that  evening,  were  received  in  London  on 
the  20th  of  September. 

Fisher  having  been  previously  directed  by  the  plaintiff  to  insure  the  cargo, 
as  soon  as  the  bill  should  be  sent  him,  directed  the  insurance  to  be  made, 
which  was  done  on  the  21st. — Upon  this  case,  the  Court  gave  judgment  for 
the  defendant. 

Lord  Mansfield  said  : — "This  policy  is  made  by  misrepresentation,  and  that 
misrepresentation  arises  from  the  proper  agent  of  the  plaintiff  who  gives  the 
intelligence.  Now  whether  this  happened  by  fraud  or  negligence,  it  makes  no 
difference;  for  in  either  case  the  policy  is  void.  As  to  the  misrepresentation, 
the  underwriter  was  warranted  on  the  inlbrmation  of  the  a^ent  to  take  for 
granted  that  the  ship  v/as  safe  at  twelve  or  one  o'clock  of  the  17th  of  Septem- 
ber;  for  the  agent  gives  an  account  of  the  ship  being  loaded,  and  says,  "I 
wish  the  whole  safe  to  hand."  Then  there  was  a  strong  ground  to  believe  on 
his  letter,  that  she  was  safe  when  the  post  came  away ;  and  the  post-mark 
shews  the  day  when  the  letters  were  sent.  How  does  this  misrepresentation 
come?  AVhy  from  Thomas,  who  writes  to  Fisher,  and  gives  him  notice  of 
the  ship's  sailing,  on  purpose  that  he  may  insure ;  for  so  he  says  expressly  in 
his  letter  to  Bundock.  He  was  honest  at  the  time  he  wrote  the  letter;  but  on 
the  16th,  at  night,  he  hears  tliat  the  ship  is  gone  ashore,  and  the  next  morning 
he  knew  that  she  was  absolutely  lost.  The  post  did  not  go  out  till  the  afternoon 
of  that  day ;  and  he  had  full  opportunity  to  send  an  account  of  the  loss.  If 
Thomas  were  not  guilty  of  fraud,  at  least  he  was  guilty  of  gross  negligence; 
but  either  way,  if  Thomas  were  perfectly  innocent,  this  policy,  being  effected 
by  misrepresentation,  is  void." 

jMr.  Justice  Buller. — "In  order  to  shew  that  Thomas  was  not  the  agent  of 
the  plaintiff,  the  counsel  has  assumed  a  fact,  which  is  contrary  to  the  case;  for 
it  is  said,  that  the  insurance  was  not  made  in  consequence  of  Thomas's  letter. 
But  v/hat  *is  die  fact?     The  plaintiff's  letter  to  Fisher  desires  him  r-    */^,~     -i 
to  insure,  as  soon  as  the  bills  of  lading  are  sent.      By  whom  were  L  J 

thev  to  be  sent?  Bv  Thomas  ;  then  he  refers  to  Thomas  for  all  the  informa- 
tion,  and  as  the  foundation  of  the  insurance.  The  plaintiff,  I  dare  say,  is 
innocent ;  and  so  is  the  defendant.  But  if  the  plaintiff  build  his  information 
on  that  of  his  agent,  and  his  agent  be  guilty  of  a  misrepresentation,  the  prin- 
cipal must  suffer.  It  is  the  common  question  every  day  at  Gidldhall,  when 
one  of  two  innocent  persons  must  suffer  by  the  fraud  or  negligence  of  a  third, 
which  of  the  two  gave  credit.  In  this  case,  the  plaintiff  trusted;  not  the 
defendant :  Thomas  had  very  material  information,  which  he  did  not  commu- 
nicate :  the  consequence  of  which  is,  that  the  policy  is  void,  and  the  postea 
must  be  delivered  to  the  defendant. "  (a) 

There  has  been  a  very  recent  case  in  this  subject  oi  Elkm  v.  Janson,  (b)  in 
the  Court  of  Exchequer.     Assumpsit  on  a  policy  of  insurance  on  the  ship 


(a)  See  Wake  v.  Atty,  4  Taunt.  493,  where  a  broker  in  pursuance  of  instructions  effected 
a  policy  at  a  time  when  a  letter  lay  on  his  table  unopened  at  the  Coal  Exchange,  acquainting 
him  with  the  loss:  and  it  was  held  that  the  jury  were  warranted  in  finding  that  this  was  not  a 
sufficient  want  of  diligence  to  avoid  the  policy,      (b)   13  M.  &  W.  65.5. 


340  OF    FRAUD    IN    POLICIES. 

Fanny^  on  a  voyafj^R  at  and  from  Seville  to  London.  The  policy  was  stated 
to  be  effected  by  one  Francis  A.  Sadler,  as  the  plaintiff's  agent.  The  seventh 
plea  stated,  that,  at  the  time  of  making  the  said  policy,  that  is  to  say,  on  the 
21st  February.,  1842,  to  wit,  in  London.,  the  plaintiff  wrongfully  and  impro- 
perly concealed  from  the  defendant  certain  facts  and  information  which  the 
plaintiff  before  then  knew  and  had  received,  that  is  to  say,  that  long  before 
that  time,  to  wit,  between  five  or  six  weeks  before  that  time,  to  wit,  on  the 
11th  January.,  1842,  the  captain  of  the  said  vessel  in  the  said  policy  mentioned 
had,  at  Seville,  drawn  a  bill  of  exchange,  bearing  date  the  day  last  mentioned, 
for  ship's  disbursements  and  charges  in  respect  of  the  said  vessel  in  the  said 
policy  mentioned.  And  that  the  said  bill  had  been  sent  from  Seville  on  or 
r  *fiT8  "1  ^bout  the  17th  day  *o{  January,  1812,  and  had  arrived  in  Jjondon 
L  J  on  or  about  the  31st  day  of  that  month,  which  said  matters,  having 

reference  to  the  ordinary  practice  and  usages  of  trade  and  trades  in  that  behalf, 
and  with  reference  to  the  times  that  had  respoclively  elapsed  between  the  date 
of  the  said  bill,  its  departure  from  Seville,  its  arrival  in  London,  and  the  time 
of  effecting  the  said  policy,  and  having  reference  also  to  the  ordinary  duration 
of  a  voyage  from  Seville  to  I^ondon,  were  material  to  the  risk  in  the  said  policy 
mentioned,  and  would  have  raised  the  rate  of  premium  at  which  the  said  policy 
could  have  been  effected,  and  ought  to  have  been  communicated  by  the  plaintiff 
to  the  defendant ;  and  this  the  defendant  is  ready  to  verify,  &;c. 

To  this  plea  the  plaintiff  replied  de  injuria,  on  which  issue  was  joined. 

At  the  trial  before  Pollock,  C.  B.,  at  the  L.ondon  Sittings  after  last  'l^erm, 
the  following  facts  were  proved  in  evidence : — The  ship  Fanny,  of  which  the 
plaintiff  was  the  owner,  was  chartered  by  M'Andreu)  ^"  Son,  of  I^ondon,  in 
September,  1841,  on  a  voyage  from  Seville,  in  Spain,  to  London.  A  ship 
called  the  Heroine,  which  sailed  from  Seville  on  the  8th  January,  arrived  at 
London  on  the  23rd  o{  January,  1842,  and  the  plaintifl',  on  going  on  board  of 
her,  was  informed  that  she  had  sailed  from  Seville  on  the  8lh,  leaving  the 
Fanny  there  loading,  and  nearly  ready  to  sail.  On  the  31st,  M\findretv  ^- 
Son  received  intelligence  from  Seville  of  the  Fanny  having  sailed  on  the  11th, 
and  they  received  by  post  a  bill  drawn  on  the  11th,  at  Seville,  by  the  master, 
for  the  disbursements  of  the  ship  at  that  port.  These  circumstances  they  com- 
municated to  the  plaintiff.  On  the  21st  of  February,  the  plaintiff  acquainted 
his  broker  with  the  fact  of  the  bill  having  been  received  from  Seville,  and 
directed  him  to  effect  an  insurance  of  the  Fanny  on  her  homeward  voyage. 
The  insurance  was  accordingly  effected  by  the  broker,  on  the  same  day,  with 
the  defendant,  an  underwriter  at  Lloyd's,  but  it  did  not  appear  that  he  men- 
tioned the  receipt  of  the  bill,  and  he  stated  at  the  trial  that  he  himself  was 
r  *fi1Q  1  ""acquainted  with  the  *date  of  it.  The  Fanny  never  arrived,  and 
L  J  assuming  that  she  sailed  or  the  11th,  she  was,  according  to  the 

time  occupied  in  the  voyage  from  Seville  to  Jjondon,  a  missing  ship  at  the  time 
the  insurance  was  effected.  It  did  not  distinctly  appear  in  what  manner  the 
case  was  left  to  the  jury,  but  they  found  in  the  first  instance  a  general  verdict 
for  the  defendant.  Afterwards,  in  reply  to  a  question  from  the  learned  Judge, 
they  said  they  thought  the  drawing  of  the  bill  was  a  material  fact  for  the 
defendant  to  have  known,  but  that  tiiere  was  no  evidence  before  them  on  which 
they  could  decide  whether  that  fact  was  or  was  not  communicated  to  him. 
The  Chief  Baron  then  directed  the  verdict  to  be  entered  for  the  plaintiff  on  all 
the  issues,  with  leave  to  the  defendant  to  move  the  Court,  in  order  that  the 
verdict  should  ultimately  be  entered  on  the  seventh  plea  as  the  Court  should 
think  right  under  all  the  circumstances  of  the  case.  A  rule  to  shew  cause  why 
the  verdict  should  not  be  entered  for  the  defendant  on  the  issue  raised  by  the 
seventh  plea  having  accordingly  been  obtained. 

The  counsel  for  the  plaintiff  contended,  that  in  this  case  the  jury  have  found 
that  it  was  a  fact  material  for  the  defendant  to  have  known  that  this  bill  was 


OF    FRAUD    IN    POLICIES.  341 

drawn  at  Seville  on  the  11th  of  January ;  and  they  were  right  in  so  doino-. 
It  was  a  fair  inference  from  the  drawing  of  the  bill  that  the  loading  of  the  ves- 
sel was  nearly  completed,  whicli  would  fix  the  probable  time  of  her  sailing. 
But  the  question  is  whether,  upon  the  pleadings  in  this  case,  the  onus  of  proving 
that  he  had  communicated  that  material  fact  to  the  defendant  lay  upon  the  plain- 
tiff, or  whether  it  lay  on  the  defendant  to  shew  that  it  had  not  been  communi- 
cated to  him.  Now,  the  seventh  plea,  on  which  the  question  arises,  is  a  plain 
confession  and  avoidance,  and  concludes  with  a  verification ;  and  therefore,  the 
burthen  of  proving  the  allegations  contained  in  it  lay  on  the  party  pleading 
them;  and  one  of  those  allegations  is,  that  the  plaintiff  wrongfully  and  impro- 
perly concealed  from  the  defendant  certain  facts  and  information  which  the 
plaintiff  then  knew  and  had  received.  The  Mefendant  ought  not  ^  ^„ 
only  to  prove,  that  such  material  f\icts  existed,  to  the  knowledge  of  ^  -J 

the  plaintiff,  but  to  give  some  reasonable  -evidence  to  shew  that  they  were  not 
communicated  to  him,  or  that  he  liad  no  notice  of  the  facts  so  alleged  to  have 
been  concealed.  It  is  a  rule  that  fraud  is  not  to  be  presumed,  but  must  be 
proved,  and  the  same  rule  will  apply  to  suppression  of  facts.  The  ordinary 
rule  is,  that  if  the  plaintiff  produces  and  proves  the  contract,  it  is  for  the  defend- 
ant to  make  out  that  it  is  invalid.  This  plea  contains  no  traverse  of  any  fact 
which  the  plaintiff  was  bound  to  establish ;  but  the  allegations  in  it  are  of  facts 
and  circumstances  which  the  defendant  was  bound  to  affirm  by  evidence.  If  a 
party  wishes  a  contract  to  be  dependent  upon  a  condition,  he  must  take  care 
that  it  is  made  a  condition  precedent  to  the  contract  itself,  otherwise  it  cannot 
be  vitiated  except  by  shewing  fraud.  The  judgment  of  Parke,  B.,  in  the  case 
of  Cornfoot  v.  Fowke,  (a)  shews  that  a  misrepresentation  not  embodied  in  the 
contract  cannot  vitiate  it,  except  it  be  fraudulently  made.  Parke,  B. — I  have 
not  the  least  doubt  about  it,  except  in  the  case  of  insurance,  which  is  a  contract 
iiberrim.e  Jidei,  vitiated  not  only  by  the  slightest  fraud,  but  by  any  misrepre- 
sentation or  concealment  of  material  facts,  which  are  deemed  equivalent  to  fraud. 
But  there  is  a  very  learned  treatise  (b)  by  an  American  lawyer,  Mr.  Duerr,  in 
which  he  dissents  from  the  common  notion  that  misrepresentation  vitiates  poli- 
cies on  the  ground  of  its  being  a  species  of  fraud. 

The  counsel  for  the  defendant  contended,  that  the  assured  was  bound  to 
communicate  this  fact  to  the  underwriters,  and  the  onus  of  shewing  that  he  did 
so  lay  upon  him.  But  if  not,  the  jury  have  in  effect  found  that  it  was  not 
communicated.  It  is  clear  that  this  non-communication  of  a  material  fact  to 
the  underwriter  avoids  the  policy,  and  it  is  not  necessary  for  that  purpose  that 
there  should  be  fraud  :  Gladstone  v.  Xing,  (c)  ^Shirley  x.  IVilkin-  p  ^„  . 
son,  [a)  Fitzherbertw  Mather,  [b)     In  the  latter  case  it  was  held,  L  J 

that  any  person  acting  by  the  orders  of  the  insured,  and  who  is  in  anywise 
instrumental  in  procuring  the  insurance,  is  bound  to  disclose  all  he  knows  to 
the  underwriter  before  the  policy  is  effected ;  and  that  when  anv  misrepresen- 
tation arises  from  his  fraud  or  negligence,  the  policy  is  void.  The  principle 
upon  which  a  policy  is  avoided  on  the  ground  of  the  concealment  of  a  material 
fact,  is  one  which  is  not  applicable  to  any  other  contract.  In  other  cases  the 
party  is  capable  of  judging  for  himself,  but  in  the  case  of  a  policy  the  contract 
is  founded  on  the  representation  of  the  assured,  and  it  is  on  that  ground  that  an 
implied  warranty  has  been  introduced,  that  the  assured  or  his  agent  has  com- 
municated every  thing  connected  with  the  risk.      The  policy  implies  that  there 


(fl)  6  M.  &  W.  .358. 

{b)  A  Lecture  on  the  Law  of  Representations  in  Marine  Insurances,  by  Jofin  Duerr, 
LL.  D.  Counsellor  at  Law.     New  York,  1844. 

(c)   1  M.  &  Selw.  35.  (a)  Doug.  306,  ante,  p.  612. 

(6)   1  T.  R.  12,  ante,  p.  614, 


342  OF    FRAUD    IN    POMCIES. 

is  no  extraordinary  circumstance  or  material  fact  not  communicated,  wliich  at 
all  alters  the  nature  of  tlie  risk,  and  that  the  assured  has  no  knowledge  which 
afl'ects  the  risk  which  he  does  not  communicate;  and  he  contracts  that  there  is 
none.  Tlien  if  it  be  shewn  that  there  is  such  a  material  fact,  it  is  for  the 
assured  to  shew  that  he  communicated  it.  There  are  two  questions  which 
always  arise  in  cases  of  this  kind,  namely,  did  a  fact  exist  which  was  known 
to  the  assured  or  his  agents,  and  was  it  communicated  to  the  underwriter.'' 
Alderson,  B. — The  assured  is  bound  to  put  the  underwriter  in  the  same  situa- 
tion with  respect  to  knowledge  as  he  is  in  hiniself. 

Parke,  B. — If  it  is  not  perfectly  clear  what  the  jury  intended  by  the  verdict 
they  have  given,  or  what  was  the  point  put  to  them  by  the  Lord  Chief  Baron, 
there  ought  to  be  a  new  trial,  for  it  is  quite  clear  that  the  verdict  cannot  be 
entered  for  the  j)laintifr  u]ion  the  case  as  it  now  stands.  My  present  impres- 
sion certainly  is,  that,  with  respect  to  the  allegations  contained  in  this  plea,  the 
burthen  of  proof  lay  on  the  defendant,  and  that  he  was  bound  to  give  some 
r  *fi99  1  evidence  of  the  non -communication,  at  the  time  he  effected  the 
L  J  policy,  *of  the  fact  which  the  jury  have  found  to  be  a  material  one 

for  him  to  know ;  for,  althougli  tliis  allegation  is  negative  in  its  terms,  still,  as 
it  was  tlie  duly  of  the  assured  to  make  that  communication,  either  upon  the 
principle  that  every  policy  is  based  on  the  supposed  existence  of  a  certain  state 
of  facts,  or  on  the  ground  that  insurance  is  a  contract  ifberrijnae  fidei,  I  think 
some  evidence  ought  to  have  been  given  by  the  defendant,  to  shev/  that  that 
material  communication  was  not  made  to  him.  Generally  speaking,  the  mere 
fact  of  subscribing  the  policy  would  be  sufficient  evidence,  in  a  case  like  the 
present;  no  prudent  man,  with  such  information  as  the  plaintiff  was  here  pos- 
sessed of,  namely,  that  the  ship  which  it  was  proposed  to  insure  had  sailed 
from  a  port  for  so  long  a  period  as  to  be  a  missing  ship,  would  have  executed 
a  policy  of  insurance  on  her.  In  this  present  case  no  doubt  can  exist  that  no 
such  communication  was  made  to  the  underwriter,  for  the  natural  channel  for 
it  to  come  through  would  be  the  broker,  who  swore  that  he  himself  was  igno- 
rant of  the  date  of  the  bill.  That  was  enough  to  cast  the  burden  of  proof  on 
the  other  side  :  and  I  tliink  tlie  jury,  in  the  absence  of  evidence  to  the  contrary, 
would  be  bound  to  find  tliat  the  fact  in  question  was  not  communicated,  and 
consequendy,  they  would  be  amply  justified  in  finding  their  verdict  for  the 
defendant.  I,  however,  entertain  some  doubt,  whether  my  Lord  Chief  Baron, 
by  the  mode  in  whicli  he  left  the  case  to  the  jury,  did  not  cast  the  onus  pro- 
handi  on  the  wrong  party ;  and  whether  they,  in  their  finding,  did  not  adopt 
that  view.  It  is  only  on  those  grounds  that  I  think  there  ought  to  be  a  new 
trial,  because  I  think  the  plaintifl'  is  not  entitled  to  a  verdict  on  the  evidence 
before  us. 

Alderson,  B. — I  am  of  the  same  opinion,  and  think  it  clear  that  the  issue 
upon  this  plea  lay  on  the  defendant.  It  is  a  necessary  averment  in  the  plea, 
that  the  communication  in  question  was  not  made.  I  take  this  plea  to  amount, 
as  the  plaintifl' 's  counsel  has  fairly  argued,  to  four  propositions  : — first,  that  the 
facts  relied  on  really  existed :  secondly,  that  the  knowledge  of  them  was  mate- 
r  *fi9^  "1  ^^^'  ^°  ^'^^  underwriter,  inasmuch  *as  it  would  have  a  tendency  to 
L  ^  raise  or  lower  the  premium  on  the  policy  about  to  be  made ;  thirdly, 

that  tliose  facts  were  known  to  the  plaintiff;  and  fourthly,  that  they  were  not 
communicated  to  the  defendant.  The  defendant  must  make  out  every  one  of 
those  propositions, — namely,  that  the  facts  stated  were  true,  that  they  were 
material,  and  within  the  knowledge  of  the  plaintiff,  and  that  they  were  not 
communicated  to  himself.  The  onus  probandi  in  this  case  rests  on  the  same 
principle  as  that  in  actions  upon  bills  of  exchange,  v/hen  the  latter  are  properly 
examined.  Take  the  case  of  an  action  by  the  holder  against  the  acceptor  of  a 
bill  of  exchange ;  where  the  declaration  alleges,  that  such  a  person  drew  his 


OF    FRAUD    IN    POLICIES.  343 

bill  of  exchange,  which  was  accepted  by  the  defendant,  and  indorsed  by  the 
drawer  to  A.,  who  indorsed  it  to  the  holder;  and  the  defendant  pleads,  that,  as 
between  himself  and  the  drawer,  the  bill  was  an  accommodation  bill,  and  denies 
that  the  indorsements  from  the  drawer  to  A.,  and  from  A.  to  the  holder,  were 
indorsements  for  value ;  to  which  the  plaintiff'  replies  de  injuria  ;  in  that  case 
the  defendant  must  prove  all  the  averments  in  the  plea.  If  he  merely  proves 
that  the  bill  was  an  accommodation  bill,  that  does  not  satisfy  the  jury  of  the 
truth  of  the  allegation  tliat  the  indorsements  were  without  value,  which  would 
otherwise  be  inferred  from  those  indorsements  themselves.  Indorsement  means 
such  an  act  as  enables  the  party  to  whom  the  bill  is  given  to  raise  money  on  it. 
Consequently,  the  fact  of  the  bill  being  an  accommodation  bill,  does  not  raise 
any  inference  that  the  indorsements  were  not  for  value,  and  so  the  defendant 
does  not  maintain  that  part  of  his  plea,  the  burden  of  proving  which  lay  on 
him.  But  take  the  case  of  fraud  ; — where  the  defendant,  who  is  sued  upon  a 
bill  of  excliange,  pleads  that  it  was  obtained  from  the  drawer  by  fraud  on  the 
part  of  A.,  and  that  A.  then  indorsed  it  to  the  holder:  there  proof  of  the  fraud 
renders  it  liighly  probable  that  A.,  who  has  obtained  the  bill  from  the  drawer 
by  fraud,  and  has  not  been  able  to  get  anything  from  him,  would  hand  it  over 
to  some  one  else,  to  be  the  conduit-pipe  for  obtaining  value  for  it.  That  raises 
*a  presumption,  until  some  answer  is  given,  that  there  has  been  no  p  sno  <  -i 
indorsement  for  value,  and  casts  upon  the  plaintiff,  after  this  general  ^  J 

evidence,  the  necessity  of  negativing  that  presumption,  and  of  shewing  that, 
although  the  above  inference  might  fairly  be  made  from  the  fact  of  there  beinff 
fraud  in  the  original  inception  of  the  bill,  value  has  in  fact  been  given  for  it  by 
the  indorsee.  In  both  these  cases,  the  issue  is  alike  on  the  defendant,  but  in 
the  latter  of  them  he  discharges  his  duty  by  giving  general  evidence  in  support 
of  his  plea,  while  in  the  former  he  does  not.  In  a  case  like  the  present,  slen- 
der evidence  of  a  material  communication  not  having  been  made  is  all  that  can 
be  required  from  a  defendant.  Suppose  the  case  to  be  that  the  ship  about  to 
be  insured  was  burnt,  and  that  the  plaintiff  knew  of  it  at  the  time  he  effected 
the  insurance.  No  one  could  have  any  doubt  whether  such  a  fiict  as  that  had 
been  communicated  to  the  defendant  or  not;  and  proof  of  the  fact  itself  would 
be  reasonable  evidence  to  shew  that  it  had  not  been  communicated,  because  the 
absurdity  of  such  an  insurance  is  so  great,  that  you  would  naturally  conclude 
that  the  insurer  could  not  be  aware  of  the  feet  of  the  ship's  destruction  by  fire 
when  he  executed  the  policy.  So  here,  it  is  almost  impossible  to  believe  that 
the  defendant  would  have  insured  this  ship,  had  he  known  that  she  had  sailed 
from  Seville  so  long  before,  that  she  must  be  considered  as  a  missing  ship  at 
the  time  the  policy  was  effected.  It  was  proved  affirmatively  that  tlie  time  of 
her  sailing  was  communicated  to  the  plaintiff,  and  that  is  sufficient  to  require 
some  affirmative  evidence  from  him,  to  shew  that«t  was  also  communicated  to 
the  defendant.  If  I  am  to  consider  myself  as  sitting  here  as  a  juryman,  I  have 
no  hesitation  in  saying  that  the  verdict  was  right.  But  I  am  not  in  that  posi- 
tion, and  the  question  for  our  consideration  is,  have  the  jury  distinctly  under- 
stood this  view  of  the  question,  and  of  the  evidence  affecting  it.''  and  if  there 
exist  any  reasonable  doubt  about  that,  it  is  better  that  the  case  should  go  again 
to  a  jury,  in  order  that  the  whole  matter  may  be  fairly  put  to  them;  when  per- 
haps *the  plaintiff  may  be  able  to  give  some  reasonable  evidence  p  ^aor.  t 
to  rebut  the  inference  of  non-communication.  ^  -' 

Pollock,  C.  B. — I  also  think  there  ought  to  be  a  new  trial,  as  the  finding  of 
the  jury  was  imperfect.  The  verdict  for  the  plaintiff,  which  was  delivered  in 
the  first  instance,  was  withdrawn  by  the  subsequent  special  finding  of  the  jury. 
That  ultimate  finding  was,  that  there  was  no  evidence  for  them  to  act  upon,  and 
there  was  no  finding  upon  the  question  whether  the  material  fact  stated  on  the 
plea  was  communicated  to  the  underwriter  or  not.     I  at  the  time  acted  on  the 


344  OF    FRAUD    IN    POLICIES. 

impression  that  I  should  reserve  the  question  now  before  us  for  further  consid- 
eration, without,  at  the  moment,  expressing  any  opinion  on  the  point.  I  cer- 
tainly do  not  feel  the  same  absence  of  doubt  whicli  has  been  expressed  by  the 
other  members  of  the  Court,  as  to  the  question  on  whom  the  burden  of  proof 
lay  in  this  case.  '  It  is  sufficient,  however,  for  me  to  say  that  there  must  be  a 
new  trial,  on  account  of  the  imperfect  finding  of  tlie  jury ;  and,  under  all  the 
circumstances,  I  think  it  ought  to  be  without  costs.  Rule  absolute  for  a  new 
trial,  (ff) 

From  these  cases,  the  principle,  which  we  sought  to  estal)lish,  is  evident, 
viz  :  that  whether  the  fraud  or  misrepresentation  be  the  act  of  the  insured  or  of 
his  agent,  the  policy  is  void,  and  the  contract  between  the  parties  is  vacated 
and  annulled. 

It  remains  to  be  considered  on  this  subject,  whether  by  the  law  of  England 
the  premium  is  to  be  returned  to  the  assured  where  the  contract  is  void  on  the 
ground  of  fraud,  and  consequently  no  risk  run :  and  whether  the  underwriter 
is  liable  to  an  action  if  he  refuse  to  refund.^ 

r  *R^c  "1  *^y  ^^^^  ordinances  of  France  it  is  declared,  that  if  fraud  shall  be 
L  J  proved  against  the  assured,  he  shall  be  obliged  to  restore  whatever 

he  may  have  received  from  the  underwriter,  and,  in  addition,  to  pay  double  the 
premium.  And  if  tiie  fraud  be  proved  against  the  underwriter,  he  must  return  the 
premium,  and  pay  the  assured  double  the  sum  insured.  Valin,  in  his  commenta- 
ries upon  these  ordinances,  justly  observes,  "that  if  the  offence  is  fully  proved 
against  the  assured,  his  punishment  is  too  small,  and  that  the  punishment  of  the 
assured  and  assurer  is  nearly  equal,  although  the  crime  is  greater  when  the  pre- 
mium and  the  value  of  the  property  is  considered,  (b)  It  seems  to  be  difficult  to 
distinofuish  the  crime  of  the  assured  and  the  assurer,  as  if  it  were  to  have  been 
punished  by  a  criminal  law,  the  pecuniary  amount  would  scarcely  enter  into 
the  consideration,  for  the  moral  off'ence  is  the  same,  though  the  gain  by  the 
fraud  may  be  greater  in  the  one  case  than  in  the  other.  And,  therefore,  as  the 
edicts  of  France  make  a  money  recompense  matter  of  it  to  the  injured  party, 
considering  the  risks  both  run  of  suffering  through  fraudulent  concealment  and 
misrepresentations,  they  declare  as  the  punishment  to  eacli  individually,  to  pay 
double  the  sum  which  the  other  respectively  would  have  received  in  case  the 
contract  had  been  fair,  and  a  return  in  one  case  of  the  money  received,  and  in 
the  other  case  to  pay  the  double  of  the  sura  insured." 

In  this  country  there  was  no  decision  in  the  Courts  of  law  for  some  time, 
and  no  legislative  enactment  upon  the  subject;  but  in  the  Court  of  Chancery, 
where  the  underwriters  have  been  relieved  from  tlieir  payments,  the  decree 
directed  the  premium  to  be  returned. 

Thus  in  the  case  of  Whittmgham  v.  Thornhorough^  (c)  in  the  year  1690, 
the  defendant  and  others  had*  come  to  the  insurance  office,  and  brought  a  policy 
for  insuring  the  life  of  one  Horwell  (upon  whose  life  they  had  no  concern  or 
interest  depending)  for  a  year;  and  the  policy  ran  whether  interested  or  not 
r  *R9'r  1  *hiterested,  at  a  premium  of  5/.  per  cent.  They  took  this  way  of 
L  -J  drav.'ing  in  subscribers  :  they  agreed  with  one  Marwood,  a  known 

merchant  upon  the  Exchange,  and  a  leading  man  in  such  cases,  to  subscribe 
first;  but  in  case  Horwell  died  within  tlie  year,  Marwood  was  to  lose  nothing, 

(a)  Tlie  liord  Chief  Baron  afterwards  referred  the  Reporters  to  the  case  of  Williams  v. 
East  India  Comi)aiiy,  3  East,  192,  which  had  not  been  cited  upon  the  argument.  It  was 
there  held,  that  wherever  the  not  giving  notice  of  a  fact  would  be  criminal,  the  notice  would 
be  presumed  ;  and  that,  in  all  cases  where  the  alfirmative  would  be  presumed,  the  party 
pleading  no  notice  must  give  some  evidence  of  the  negative,  and  that  the  best  evidence  of 
which  the  nature  of  the  thing  was  capable. 

(/y)  2  Valin,  90.  (c)  Prec.  in  Chanc.  20,  and  2  Vern.  206. 


OF    FRAUD    IN    POLICIES.  345 

t 

but,  on  the  contrary,  was  to  share  what  should  be  gained  from  the  other  sub- 
scri!)ers.  Upon  the  credit  of  Marwood's  subscribing,  several  ollicrs  (wlio  liad 
inquired  of  Marwood  about  Ilorwell,  who  was  his  neicrhbour)  subscribed  like- 
wise. Horwell  lived  about  four  months,  and  tlien  died  ;  and  this  bill  was 
brougiit  to  be  relieved  against  the  policy  :  and  this  matter  being  all  confessed 
by  the  answer,  the  Court  decreed  the  policy  to  be  delivered  up,  and  the  pre- 
mium to  be  repaid. 

So  also  in  the  case  of  Da  Costa  v.  Scandrel,  («)  which  has  already  been 
cited  in  a  former  part  of  this  section.  Lord  Macclesjfield,  although  he  held  the 
policy  to  be  void,  on  the  ground  of  fraud,  decreed  the  premium  to  be  returned 
to  the  insured. 

It  is  true,  that  during  the  argument  in  the  case  next  to  be  quoted,  the  counsel 
cited  a  case  of  Racker  v.  JIollins;bimj,  in  which  the  Master  of  the  Rolls  had 
been  of  a  different  opinion  from  that  delivered  in  the  two  preceding  cases.  But 
liord  I\/ans/ield  said,  that  there  must  be  some  mistake  in  reciting  the  case  before 
the  Master  of  the  Rolls,  for  the  practice  of  the  Court  of  Chancery  was  cer- 
tainly agreeable  to  tlie  two  former  cases. 

The  case  in  which  this  observation  was  made,  was  JVihon  v.  Ducket,  (b) 
in  an  action  on  a  policy  of  insurance  on  a  ship,  with  a  count  of  a  general  inde- 
bitatus  assumpsit  for  money  had  and  received  to  the  plaintiff's  use,  and  dam- 
ages were  laid  at  98/.  The  trial  was  had,  under  a  decree  of  the  Court  of 
Chancery,  where  tlie  now  defendant,  the  insurer,  being  there  complainant,  had 
offered  to  pay  back  the  premium,  which  was  10/.  No  money  was,  in  the 
present  case,  paid  into  Court,  though  the  usual  course  in  these  cases  is  for  the 
^defendant,  the  insurer,  to  bring  the  premium  into  Court.  The  p  sfcoR  1 
jury  found  a  verdict  for  the  plaintiff,  for  the  ten  pounds'  premium,  ^  -^ 

on  the  count  for  money  had  and  received  to  his  use,  although  they  were  of 
opinion  against  the  policy,  upon  the  foot  of  fraud,  and  found  against  it,  as  being 
fraudulent.  In  fact,  the  first  underwriter  was  only  a  decoyduck,  to  induce 
other  persons  to  underwrite  the  policy ;  and  it  had  been  previously  agreed 
between  the  insured  and  him,  that  he  should  not  be  bound  by  signing  the 
policy,  which  this  Court  considered  as  a  fraud,  and  therefore  that  the  jury  had 
given  a  right  verdict  in  finding  the  policy  fraudulent.  With  the  concurrence  of 
Lord  Mansfield  (before  whom  this  cause  was  tried)  and  of  the  counsel  on  both 
sides,  it  was  agreed  to  bring  this  question  before  the  Court,  whether,  upon  a 
policy  of  insurance  being  found  fraudulent,  the  premium  should  be  returned  to 
the  plaintiff,  (the  insured)  or  retained  by  the  defendant  (the  insurer.*^)  The 
cases  above-mentioned  were  quoted  by  the  counsel  for  the  plaintiff;  but  they 
being  all  in  Ciiancery,  Lord  Mansfield  said,  he  wanted  to  know  whether  there 
was  any  common  law  determination  to  the  same  effect.  As  it  did  not  appear 
that  there  was,  his  liordship  said,  it  was  plain  what  must  be  done  in  this  case; 
for  he  looked  upon  the  offer  made  by  the  complainant's  bill  in  equity,  to  be  the 
same  thing  as  if  the  money  had  actually  been  brought  into  Court  in  the  present 
case. 

But  although  the  common  law  had  been  so  silent  upon  the  subject,  as  not  to 
lay  down  any  general  rule,  and  although  in  all  the  cases  stated  the  premium 
was  restored,  yet  if  the  fraud  is  notorious,  palpable,  and  gross  in  its  nature,  the 
Court  may  order,  and  has  ordered,  the  underwriter  to  retain  the  premium. 

Thus  in  Tyler  v.  Home,  (c)  where  an  action  was  brought  by  the  insured 
to  recover  150/.,  being  the  amount  of  the  defendant's  subscription,  the  ground 
of  refusal  was,  that  the  insurance  was  fraudulent;  and  that  the  plaintiff  knew 


(a)  2  P.  Wms.  170.      Vide  ante,  p.  577.      (b)  3  Burr.  1361. 
(c)  Sit.  at  Guild,  alter  Hil.  1785.     Sec  Park.  Ins.  453. 


340  OF    FKAUD    IN    POLICIES. 

r  *r9Q  1  °^  '^^*^  ^'""^^  ^^  ^^''^  '^'^'P  ^^  ^'^^  ^^'"^  "^  cflccling  the  policy.  The 
L  -^  founsf'l  for  the  plaintifr  were  under  the  necessity  of  udiuitting  that 

tlicir  cheat  had  made  some  iraudulent  insurances  upon  this  very  ship,  subse- 
quent to  the  one  now  in  dispute,  but  contended  that  tiie  news  of  the  loss  of  the 
ship  had  not  arrived  till  after  this  particular  one  was  made.  The  evidence, 
however,  was  so  strong  as  easily  to  convince  the  jury  that  the  plaintiff  had 
received  information  of  die  loss  before  the  order  for  making  the  insurance  was 
given  to  die  broker ;  and  they  found  a  verdict  for  the  defendant. 

Lord  Mansfield  said, — "The  fraud  was  so  gross,  that  the  premium  sliould 
not  be  recovered  from  the  underwriter." 

At  last  diis  great  question  came  to  be  expressly  decided  in  the  case  of  Chap- 
man and  others  v.  Fraser,  (c)  where  die  agent  of  die  assured  only  had  been 
the  guilty  person,  and  die  whole  Court  of  King's  Bench  were  of  opinion,  diat 
in  a?l  cases  of  actual  fraud  on  die  part  of  the  assured  or  his  agent,  the  under- 
writer miiiht  retain  die  premium. 

If  a  policy  be  avoided  on  account  of  a  misrepresentation  made  widiout  any 
fraud,  the  assured  is  enUtled  to  a  return  of  premium  {Feise  v.  Parkinson.)  {d) 

It  is  to  be  observed  that  it  has  been  laid  down  as  clear  law  diat,  if  die  under- 
writer has  been  guilty  of  fraud,  an  action  lies  against  him,  at  the  suit  of  die 
insured,  to  recover  die  premium.  Thus  it  was  said  by  Lord  Mansfic/d,  in  the 
case  of  Carter  v.  Boehm,  {e)  which  has  already  been  quoted  at  large  in  this 

section: "The  policy  would  be  void  against  the  underwriter  if  he  concealed 

anydiing ;  as,  if  he  insured  a  ship  on  her  voyage,  wliich  he  privately  knew  to 
be  arriv°ed,  and  an  action  would  lie  to  recover  the  premium." 

By  several  of  the  foreign  ordinances  the  punishment  of  fraud  in  matters  of 
insurance  is  exceedingly  severe.  By  diose  of  Jluisterdum  it  is  declared, 
"That  as  contracts  of  insurance  are  contracts  of  good  faith,  wherein  no  fraud 
-,  or  deceit  ought  'to  take  place,  in  case  it  be  found  that  the  insured 
[  "030  J  ^^,  ij^gjii-ers,  captains,  shippers,  pilots,  or  others,  used  fraud,  deceit, 
or  craft,  they  shall  not  only  forfeit  by  their  deceit  and  craft,  but  shall  also  be 
liable  to  the  loss  and  damage  occasioned  thereby,  and  be  corporally  punished 
for  a  terror  and  example  to  others,  even  with  deadi,  as  pirates  and  manifest 
thieves,  if  it  be  found  that  they  have  used  notorious  malversaUon  or  craft."  (a) 
The  ordinances  of  Middleburg  contain  a  provision  exacdy  in  the  same  words. 
At  Stockholm^  also,  it  has  been  declared  that  such  an  offender,  besides  resdtu- 
tion  to  tlie  party  injured,  shall,  according  to  the  circumstances  of  every  particular 
affair,  be  punished  in  his  estate,  honour  and  life,  {b) 

Frauds  in  contracts  of  insurances  have  not  as  yet  had  any  punishment  affixed 
to  them  by  the  laws  of  England,  that  I  have  been  able  to  learn ;  but  there  are 
one  or  two  cases  whicli  have  been  declared  to  be  felonious  by  positive  statutes 
where  the  act  committed  has  been  to  the  prejudice  of  the  underwriters,  (c) 


(c)  B.  R.  Trin.  33  Geo.  3.      Park  Ins.  456. 

(of)  4  Taunt.  640.  (e)  3  Burr.  1909. 

(a)  Ord.  of  Amsterdam,  art.  56;  2  Mag.  146. 

(i)  Art.  30;  2  Mag.  76;  2  Mag.  288.  (c)  See  1  Vict.  c.  89,  s.  6,  ante,  p.  346. 


OF    ILLEGAL    VOYAGES.  347 


SECTION  II. 

OF    ILLEGAL    VOYAGES. 

Although  n  great  deal  has  been  said  in  the  preceding  part  of  this  Treatise 
of  voyages  in  general,  nothing  has  been  said  about  any  illegality  that  might 
affect  the  voyage  and  render  it  void.  I  shall,  therefore,  in  this  section,  proceed 
to  show  that  in  many  instances  a  voyage  which  is  prohibited  by  the  laws  of  the 
country,  renders  every  insurance  on  it  void,  and  the  policy  of  no  effect.  And 
the  rule  is  this,  "that  whenever  an  insurance  is  made  on  a  voyage  expressly 
prohibited  by  the  common,  statute,  or  maritime  law  of  the  country,  the  policy 
is  of  no  effect.  The  principle  upon  which  such  a  regulation  is  ^  ^„„.  -, 
*founded,  is  not  peculiar  to  this  kind  of  contract;  for  it  is  nothing  L  J 

more  than  that  which  destroys  all  contracts  whatsoever:  that  men  can  never 
be  presumed  to  make  an  agreement  forbidden  by  the  laws ;  and  if  they  should 
attempt  such  a  thing,  it  is  invalid,  and  will  not  receive  the  assistance  of  a  Court 
of  Justice  to  carry  it  into  execution."  («) 

1.  The  most  material  case  upon  this  point  is  that  o^  Johnston  v.  Sutton^  [b) 
which  came  on  to  be  argued  in  the  year  1779,  and  received  the  solemn  opinion 
of  the  Court  of  King's  Bench. 

It  was  an  action  on  a  policy  of  insurance  on  goods,  on  board  the  ship  Venus, 
"lost  or  not  lost,  at  and  from  London  to  Nezv  Fork,  warranted  to  depart  with 
convoy  from  the  channel  for  the  voyage."  The  cause  was  tried  before  Lord 
Mansfield,  at  Guildhall,  and  a  verdict  was  found  for  the  plaintiff.  The 
defendant  obtained  a  rule  to  show  cause  why  there  should  not  be  a  new  trial. 
The  facts,  upon  his  Lordship's  report,  appeared  to  be  these : — The  ship  was 
cleared  for  Halifax  and  Neiv  York.  She  had  provisions  on  board,  which  she 
had  a  license  to  carry  to  A^ew  York,  under  a  proviso  in  the  prohibitory  act  of  16 
Geo.  3,  c.  5.  But  one-half  of  the  cargo,  including  the  goods,  which  were  the 
subject  of  this  insurance,  was  not  licensed,  and  was  not  calculated  for  the 
Halifax  market,  but  for  Neiv  York.  There  had  been  a  proclamation  by  Sir 
William  Howe  to  allow  the  entry  of  unlicensed  goods  at  JVew  York;  and 
though  there  were  bonds  usually  given  at  the  Custom  House  here,  by  which 
the  captain  engaged  to  carry  the  goods  to  Halifax,  those  bonds  were  afterwards 
cancelled,  on  producing  a  certificate  from  an  officer  appointed  for  that  purpose 
at  Neiv  York,  declaring  that  they  were  landed  there.  The  commander-in- 
chief  had  no  authority  under  the  act  of  Parliament  to  issue  such  proclamation, 
or  to  permit  the  exportation  of  unlicensed  goods.  The  Venus  was  taken  in 
her  passage  to  New  York  by  an  .Hmerieein  privateer.  The  first  section  of  the 
statute  prohibits  all  commerce  with  *the  province  of  New  York,  p  ^n^^  -^ 
(amongst  others,)  and  confiscates  all  ships  and  their  cargoes  which  L  '  J 
shall  be  found  trading,  or  going  to  or  coming  from  trading  with  them,  (c)  In 
section  the  second  there  is  a  proviso,  excepting  ships  laden  with  provisions  for 
the  use  of  his  Majesty's  garrisons  or  fleets,  or  for  the  inhabitants  of  any  town 
possessed  by  his  Majesty's  troops,  provided  the  master  shall  produce  a  license 
specifying  the  voyage,  &lc.,  and  the  quantity  and  species  of  provisions ;  but  by 
the  same  proviso  it  is  declared,  that  goods  not  licensed,  found  on  board  such 
ship,  shall  be  forfeited.     After  argument,  upon  the  motion  for  a  new  trial, 

(a)  See  Park  Ins.  p.  497.  (6)  Doug.  254. 

(c)    16  Geo.  3,  c.  5. 


348  OF    ILLEGAL    VOYAGES. 

TiOrd  Mansfield  said — "The  whole  of  tlio  plaintifT's  case  goes  on  an  ostab- 
lishetl  practice,  directly  against  an  act  of  Parliament.  If  the  defendant  did  not 
know  that  the  goods  were  unlicensed,  the  olijeclion  is  fair  as  between  the 
parties.  If  he  did,  he  would  not  deserve  to  be  favoured.  But,  however  that 
may  be,  it  was  illegal  to  send  the  njoods  to  Neiv  Y^ork,  and.  in  ])ari  delicto, 
potior  etit  conditio  defcndentis.  It  is  impossible  to  bring  this  within  the  cases 
cited,  [b]  because  here  there  was  a  direct  contravention  of  the  law  of  the  land." 
The  rule  for  a  new  trial  was  made  absolute. 

Upon  the  same  principle  it  was  that  in  the  cause  of  Camden  and  others  v. 
Mnderson,  (c)  which  was  long  contested  in  the  Court  of  King's  Bench,  and 
afterwards  upon  a  writ  of  error  in  the  Exchequer  Chamber,  the  underwriters 
were  held  not  liable,  tlie  insurance  in  that  case  being  made  in  direct  contraven- 
tion of  the  exclusive  right  of  trading  granted  to  the  I^ast  India  Company  by 
Stat.  9  &  10  Wm.  3,  c.  44,  s,  81,  and  which  exclusive  right  had  never  for  one 
moment  been  suspended,  nor  had  that  statute  ever  ceased  to  be  an  existing  law. 
Indeed  the  principle  which  destroys  all  insurances  made  on  ships  proceeding 
on  illegal  voyages,  never  was  contested  at  the  Bar  in  the  argument  of  the  above 
r  *a-^'i  1  ^''"^^  5  ''^'^  ""^y  ^''^  ^application  of  it  to  the  particular  case,  on 
L  '  J  account  of  various  statutes  which  had  been  passed  and  repealed, 
and  on  account  of  a  clause  in  a  more  modern  statute,  which  it  was  supposed 
precluded  the  underwriters  from  setting  up  this  defence,  (a)  But  no  man 
attempted  to  argue  that  that  which  is  unlawful,  and  a  public  Avrong,  could  be 
the  ground  of  an  action. 

2.  Soon  after  the  above  decision,  a  case  of  Wilson  v.  Marryal,  (b)  arose, 
in  which  the  rights  of  the  £ast  India  Company,  as  far  as  they  were  afTected 
by  the  treaty  between  this  country  and  America,  came  to  be  discussed  in  an 
action  on  a  policy  of  insurance.  By  the  13th  article  of  that  treaty,  which  was 
confirmed  by  stat.  37  Geo.  3,  c.  97,  s.  22,  the  United  States  of  America  are 
permitted  to  trade  to  and  from  the  British  territories  in  India.  But  it  was 
contended,  notwithstanding  the  treaty  and  statute,  that  the  insurance  in  question 
was  upon  an  illegal  voyage,  being  "at  and  from  Bourdeuux  to  Madeira  and 
the  East  Indies,  and  back  to  America,^''  whereas  the  treaty  meant  to  tolerate 
no  other  trading  than  a  direct  one  between  America  and  the  East  Indies:  and 
also  it  was  insisted,  that  Butler  and  Collet,  the  persons  for  whose  benefit  this 
insurance  was  effected,  were  not  entitled  to  the  benefit  of  the  treaty,  they  being 
natural-born  subjects  of  this  country,  but  one  of  whom,  after  the  ratification  of 
American  independence,  had  gone  with  his  wife  and  family  to  reside  in  Amer- 
ica, has  ever  since  been  domicded  there,  and  received  as  a  citizen  of  the  States 
of  America,  and  the  other  of  whom  was  resident  and  domiciled  in  America 
before  the  independence  of  that  country,  and  has  continued  to  be  resident  and 
domiciled  there  :  and  because  their  agent,  the  plaintiff,  when  he  shipped  the 
goods,  and  when  he  caused  the  policies  to  be  eflected,  was  resident  in,  and  a 
subject  of  Great  Britain,  and  knew  that  the  ship  \vas  destined  for  the  British 
territories  in  India.  The  special  verdict  in  this  case  was  three  times  argued 
in  the  King's  Bench,  and  once  in  the  Exchequer  Chamber ;  and  the  learned 
r  *fi'^4.  1  Judges  composing  both  those  Courts,  were  ^unanimously  of  opinion 
L  J  that  a  natural-born  suliject  of  this  country,  though  he  cannot  throw 

ofi"  his  allegiance  to  the  country,  yet  he  may  be  a  citizen  of  America  for  the 
purposes  of  commerce,  and  entitled  in  the  latter  character  to  all  the  benefits  of 


(h)  These  were  cases  of  insurances  on  ships  trading  contrary  to  the  revenue  laws  of 
foreign  countries,  of  which  more  will  be  said  hereafter, 
(c)  6  T.  R.  723;  1  B.  &  P.  173. 

(a)  33  Geo.  3,  c.  52,  s.  150.      Park  Ins.  499. 

(b)  8T.  R.  31;  1  B.  &  P.  430. 


OF    ILLEGAL    VOYAGES.  349 

the  treaty :  and  that  the  trade  allowed  by  tlie  treaty  between  .America  and  the 
East  Indies  need  not  be  direct:  it  may  be  carried  on  circuitously  through  any 
country  in  Europe,  including  Great  Britain.  The  plaintifTs  had  judgment. 
In  the  Court  of  King's  Bench,  Lord  Kenyan  added,  that  if  in  the  commence- 
ment of  one  entire  voyage  there  be  anything  illegal,  and  an  insurance  be  effected 
on  the  latter  part  of  the  voyage,  which  taken  by  itself  would  be  legal,  such 
illecral  commencement  would  have  made  the  whole  illegal,  and  the  assured  could 
not  recover  upon  the  policy. 

And  the  question  again  came  before  the  Court  in  the  case  of  Bell  v.  Reid,{a) 
where  it  was  held,  that  a  natural-born  subject  of  this  country,  domiciled  in  a 
foreign  country  in  amity  with  this,  may  lawfully  exercise  the  privileges  of  a 
subject,  where  he  is  domiciled,  to  trade  with  another  country,  in  hostiUty  with 
this. 

Lord  StowcU  likewise  acknowledges  this  rule  of  law  respecting  tlic  privi- 
leges which  a  subject  of  one  country  is  able  to  exercise,  by  becoming  resident 
and  domiciled  in  another.  In  the  case  of  the  Matchless,  [b)  he  says,  "Mr. 
Millidge  is  described  in  the  claim  as  a  British-hovn  subject,  but  at  present 
residing  at  Boston.  He  is  described  as  residing  with  his  family  there,  and  he 
appeal's  in  this  transaction  as  exporting  goods  thence.  Not  a  word  has  been 
produced  to  shew  that  he  is  not  a  settled  merchant  of  that  city.  A  question, 
then,  arises  of  great  moment,  regarding  as  well  the  interests  of  a  state  as  the 
interests  of  its  subjects.  Is  such  a  person  to  be  considered  as  a  merchant  of 
Great  Britain,  or  a  merchant  of  .America?  Upon  such  a  question  it  has  cer- 
tainly been  laid  down  by  accredited  writers  on  general  law,  and  upon  grounds 
apparently  not  unreasonable,  that  if  a  *merchant  expatriates  him-  p  ^pq?;  n 
self,  as  a  merchant  to  carry  on  the  trade  of  another  country,  ex-  L  -^ 

porting  its  produce,  paying  its  taxes,  employing  its  people,  and  expending  his 
spirit,  his  industry,  and  his  capital  in  its  service,  he  is  to  be  deemed  a  merchant 
of  that  country,  notwithstanding  he  may,  in  some  respects  be  less  favoured  in 
that  country  than  one  of  its  native  subjects.  Our  own  country,  which  is 
charged  with  holding  the  doctrine  of  unextinguishable  allegiance  more  tena- 
ciously than  others,  is  no  stranger  to  the  application  of  this  nile.  Its  highest 
tribunals  which  adjudicate  the  national  character  of  property  taken  in  war  apply 
it  universally."  His  Lordship,  after  referring  to  the  authorities  above-men- 
tioned, proceeds,  "under  the  shelter  of  these  authorities,  I  should  incline  to 
hold,  if  I  were  compelled  to  face  the  general  question,  that  a  British  merchant 
resident  in  a  foreign  country  must  part  with  some  commercial  privileges  which 
he  would  preserve  if  resident  at  home,  whilst  he  acquires  others  by  residence 
abroad." 

So  also  in  pursuance  of  the  principle  just  adverted  to,  as  falling  from  Lord 
Kenyan,  the  Court  of  King's  Bench,  in  a  much  contested  case  of  Bird  v. 
Appleton,  (c)  held,  that  if  a  ship  was  insured  "at  and  from  Canton  to  Ham- 
burgh,^'' and  during  her  stay  at  Canton  was  engaged  in  an  illegal  traffic,  the 
assured  could  not  recover  for  the  ship  in  the  course  of  the  voyage  from  Canton 
to  Hamburgh.  (J) 

By  the  statute  of  9  Ann.  c.  21,  all  vessels  navigating  within  the  limits  of 
the  exclusive  trade  of  the  South  Sea  Company  were  required  to  have  a  license 
from  the  South  Sea  Company,  (e)  The  42  Geo.  3,  c.  77,  repealed  the  neces- 
sity of  a  license  from  either  the  East  India  or  South  Sen  Company  for  ships 
passing  through  the   Straits  of  Magellan,  or  round  Cape  Horn,  and  trading 

(a)   1  M.  &  S.  726.  (b)   1  Hagg.  A.  R.  103. 

(c)  8  T.  R.  562. 

(d)  See  Sewell  v.  Royal  Exch.  Comp.  4  Taunt.  856. 

(e)  Toulmin  v.  Anderson,  I  Taunt.  227 ;  an:e,  p.  344. 


350  OF    ILLEGAL    VOYAGES. 

in  the  Pacific  Ocean  from  Cape  Horn,  to  180  degrees  west  longitude  from 
r  sflof  -1  London;  whether  *they  combine  fishing  witli  trachng  or  not.  («) 
L  J  This  point  was  further  cleared  by  55  Geo.  3.  c.  57,  and  141.  (6) 

If  a  ship,  though  neutral,  be  insured  on  a  voyage  prohibited  by  an  embargo, 
laid  on  in  time  of  war  by  the  prince  of  the  country,  in  whose  ports  the  ship 
happens  to  be,  such  an  insurance  also  is  void.  This  depends  upon  die  power 
of  an  embargo,  the  right  of  laying  on  which  by  the  sovereign  of  this  country 
in  time  of  war  is  undoubted,  although  in  time  of  peace  it  may  be  a  different 
question.  The  right  being  admitted,  it  follows  of  course,  that  any  act  done  in 
contravention  of  a  proclamation  of  this  nature,  is  illegal  and  criminal,  liecause 
it  is  equally  binding  as  an  act  of  Parliament,  and  a  contract  founded  on  such 
illicit  proceedings  is  consequently  void. 

This  was  determined  in  a  case  of  Delmada  v.  Mottciex,  (c)  upon  a  special 
verdict.  It  was  an  action  on  a  policy  of  insurance  on  the  Bella  Juditta,  a 
Venetian  ship,  at  and  from  London  to  Grenada,  with  liberty  to  touch  at  Cork 
and  Madeira  to  load.  The  defendant  pleaded  the  general  issue,  and  the  cause 
came  on  for  trial  before  Mr.  Justice  Buller,  when  the  jury  found  a  special 
verdict,  the  material  facts  in  which  were  these : — That  the  ship  M'as  a  Vene- 
tian vessel,  and  tlie  plaintiff"  a  subject  of  the  state  of  Venice;  that  in  October, 
1782,  the  ship  sailed  on  her  voyage  from  London  to  Cork,  and  there  took  in  a 
(-  $j?q7  -]  loading  of  provisions,  the  property  *of  French  subjects,  the  ene- 
L  J  mies  of  the  King  of  Great  Britain.     That  the  said  ship,  having 

taken  in  at  Cork  clearances  and  bills  of  lading  for  Madeira,  an  island  belonging 
to  the  King  of  Portugal,  sailed  in  December,  1782,  from  Cork  to  that  island, 
at  which  she  was  neither  to  unload  any  part  of  her  cargo,  nor  to  rec^ve  any 
goods  on  board,  but  where  she  took  clearances  and  bills  of  lading  for  the  island 
of  'S'^  Thomas,  belonging  to  Denmctrk,  whither  she  was  not  destined ;  that 
on  her  voyage  from  Madeira  to  Grenada,  within  fourteen  leagues  of  the  latter, 
she  was  captured  by  an  English  man-of-war  as  prize,  and  carried  to  St.  Lucia; 
that  when  the  ship  sailed  from  London,  and  from  thence  till  after  the  capture, 
Grenada  was  in  the  possession  of  the  French  king.  The  special  verdict  further 
finds,  that  his  Majesty,  on  the  18th  day  of  .August,  1780,  laid  an  embargo 
upon  all  ships  and  vessels  laden  or  to  be  laden  in  the  ports  of  the  kingdom  of 
L'eland  with  black  cattle  and  hogs,  beef,  pork,  butter^  and  cheese,  or  any  sort 
of  provisions.  It  is  also  found,  that  after  the  capture,  a  suit  was  commenced 
in  the  Vice  Admiralty  Court  at  Barbadoes,  against  the  said  ship  and  cargo,  as 
belonging  to  the  French  king,  or  to  some  of  his  subjects ;  and  the  Judge  of 
that  Court  did  condemn  the  cargo  as  the  property  of  the  enemies  of  the  King 
of  Great  Britain,  which  sentence  was  appealed  from,  and  is  now  depending  j 
that  the  Judge  of  the  said  Court  of  Vice  Admiralty  was  of  opinion,  that  the 
said  ship  Bella  Jicdittu  was  the  property  of  Abraham  Delmada,  the  plaintiff, 
and  ordered  that  the  ship  should  be  restored;  but  he  did  not  conceive  the  owner 
of  the  said  ship  to  be  entitled  to  any  freight,  or  damages  occasioned  by  the 
capture,  because  she  was  engaged  in  a  wrong  act,  and  the  captor  did  no  more 
than  his  duty ;  that  the  said  ship  was  accordingly  restored. 


(fl)  Jacob  V.  Jansen,  3  Taunt.  .')34.     Gill  v.  Dunlop,  Hil.  56,  Geo.  3,  in  C.  P. 

(6)  See  Cowic  v.  Barber,  4  M.  &  S.  16,  where  these  acts  of  Parliament  do  not  appear 
to  have  been  adverted  to.  The  45  Geo.  3,  c.  34,  bestowed  on  foreign  ships  the  same  pri- 
vilege which  the  42  Geo.  3,  c.  77,  gave  to  British  built  ships.  The  Court  of  Error,  how- 
ever, in  the  case  of  Dunlop  v.  Gill  afterwards  reversed  the  decision  of  C.  P.  And  they  held 
that  the  45  Geo.  3,  c.  34,  only  repealed  the  navigation  act  as  to  I'oreign  built  ships,  and  did 
not  confer  upon  them  (when  navigating  under  its  provisions  with  the  king's  license)  all  the 
privileges  of  British  built  ships,  and  therefore  that  the  former  could  not  trade  to  tiie  western 
coa.st  of  America  without  a  South  fcjea  license,  1  B.  &  A.  334;  and  sec  the  present  navi- 
gation law,  3  &  4  Wm.  4,  c.  54.  (c)  B.  R.  Mich.  35  Geo.  3.     Park  Ins.  p.  505. 


OF    ILLEGAL    VOYAGES.  351 

Upon  this  verdict,  tlie  question  for  the  Court  to  decide  in  point  of  hiw,  was 
whether  the  insurers  upon  the  ship  on  this  voyage  were  liable  to  pay  for  this 
loss  of  freight,  and  the  damages  occasioned  by  the  capture? 

Lord  Munsfidd. — ''•Is  this  voyage  not  a  breach  of  the  embargo?  p  ^c'\9.  1 
*The  king  in  time  of  war  has  an  un(loul)ted  riglit  to  lay  an  embargo  :  L  J 

in  time  of  peace  it  is  another  cpiestion.  Every  power  lays  them  on.  If  the 
ship  had  only  been  carrying  goods  of  an  enemy  on  a  voyage  lawful  for  her  to 
perform,  she  might  have  been  entitled  to  freight.  But  hen;  the  sentence  says, 
she  shall  not.  And  why?  because  she  has  done  a  wrong  thing.  It  is  a  fraud : 
for  under  a  colour  of  a  neutral  port,  she  goes  to  an  enemy's  port.  She  breaks 
an  embargo.  What  tlic  consequence  of  that  is,  has  not  as  yet  been  settled; 
but  to  break  an  embargo  is  undoubtedly  a  criminal  act;  and  wherever  a  man 
makes  an  illegal  contract,  this  Court  will  not  lend  him  their  aid."  The  defend- 
ant accordingly  had  judgment. 

Though  an  insurance  upon  a  smuggling  voyage,  prohil)ited  by  the  revenue 
laws  of  this  country,  would  be  void  under  the  principle  above  stated;  yet  the 
rule  has  never  been  supposed  to  extend  to  those  cases,  where  ships  have  traded, 
or  intend  to  trade,  contrary  to  the  revenue  laws  of  foreign  countries,  because 
no  country  takes  notice  of  the  revenue  laws  of  another ;  in  such  cases,  there- 
fore, the  policy  is  good  and  valid,  and  if  a  loss  happen,  the  underwriter  will 
be  answerable. 

Thus  in  the  case  of  Planche  against  Fletcher^  which  was  stated  at  large  in 
a  preceding  section,  («)  one  of  the  objections  taken  to  the  insurance  was,  that 
there  was  a  fraud  on  the  underwriters,  the  ship  having  been  cleared  out  for 
OslemU  although  she  was  never  designed  to  go  to  that  place.  But  hortl  Mans- 
field declared,  for  himself  and  his  brethren,  that  it  was  no  fraud  on  the  under- 
writers, perhaps  on  nobody.  The  reason  for  clearing  for  Osfend,  and  signing 
bills  of  lading  as  from  thence,  did  not  fully  appear :  but  it  was  guessed  at. 
The  Fcnniers  Gencraiix  have  the  management  of  the  taxes  in  France.  As 
we  have  laid  a  large  duty  on  French  goods,  the  French  may  have  done  the 
same  on  ours,  and  it  may  be  the  interest  of  the  farmers  to  connive  at  the  impor- 
tation of  English  commodities,  and  take  Ostcnd  duties  rather  than  stop  the 
*trade  by  exacting  a  tax,  which  amounts  to  a  prohibition.  But  at  p  *«qq  -j 
any  rate,  this  was  no  fraud  in  this  country.      One  nation  does  not  L  J 

take  notice  of  the  revenue  laws  of  another. 

In  another  case  of  Lever  v.  Fletcher,  [b]  a  short  time  afterwards  at  Guild- 
hall, Lord  Mansfield-,  in  his  charge  to  the  jury,  advanced  the  same  doctrine 
which  had  been  established  by  the  whole  Court  in  the  preceding  case. 

It  was  an  action  on  a  policy  of  insurance,  at  and  from  London  to  Pensocola 
and  Manshae,  in  the  river  Mississippi,  with  liberty  to  touch  at  Portsmouth 
and  Jamaica.  The  ship  insured  Avas  employed  in  the  usual  trade  in  the  river 
Mississippi,  and  traded  at  Little  Manshae,  on  the  island  of  New  Orleans,  part 
of  the  dominion  of  Spain.  Manshae,  the  place  mentioned  in  die  policy,  is 
part  of  the  continent  of  North  Jlmerica,  on  that  side  of  the  river  which  France 
and  Spain,  by  the  treaty  of  Paris  in  1763,  surrendered  to  Great  Britain,  and 
is  about  thirty-seven  leagues  higher  up  the  river  than  New  Orleans.  The  loss 
happened  by  a  seizure  of  the  ship  at  LAttle  Manshae  by  the  Spanish  governor, 
as  a  reprisal  for  transgressions  alleged  to  have  been  committed  by  a  king's  ship 
in  the  Lakes.  The  counsel  for  the  defendant  contended,  that  the  policy  in 
question  was  on  a  trading  voyage,  and  that  the  trade  itself  was  an  illicit  one. 

Lord  Mansfield. — "The  first  question  is,  whether  this  policy  covers  the 
trading  on  the  Mississippi  before  the  ship's  arrival  at  Manshae?     The  trading 

(a)  Sect.  1,  part  2,  p.  597.  (J)  Lond.  sit.  Hill.  Vact.  1780.    Park  Ins.  p.  506. 

Vol.  VIL— Y 


352  OF    ILLEGAL    VOYAGES. 

at  Little  Mamhac  is  a  delay  of  the  voyage,  and  an  increase  of  tlie  risk.  If 
the  policy  do  not  cover  this  part  of  the  trading,  then  it  is  a  deviation,  and  there 
is  an  end  of  the  contract,  at  least  so  as  to  prevent  the  plaintiff  from  recovering. 
It  is  very  clear  what  the  trade  is.  Every  trading  with  the  subjects  of  Spain  is 
illicit  by  the  treaty  of  Paris.  The  navigation  is  free  to  both  countries  ;  and  the 
municipal  laws  of  both  countries  remain.  Though  such  trading  be  contrary  to 
the  laws  of  Spain,  yet  no  country  pays  attention  to  the  revenue  laws  of  another. 
-,  Therefore,  if  *the  defendant  had,  with  full  knowledge  that  it  was  a 
[  *640  J  gjjjuggiijig  trade  with  Spain,  made  the  insurance  then  it  might  be  a 
lair  contract  between"  the  parties.  But  the  main  question  for  consideration 
seems  to  be,  whether  this  trading  at  Little  Manshae  was  insured  by  the  policy?" 
The  jury  found  for  the  defendant,  and  it  may  be  presumed  on  the  ground  of 

deviation.  t  j      i- 

Mr.  J.  Park  in  his  Treatise,  (o)  has  some  remarks  on  the  subject  oi  trading 
ivith  an  enemy,  which  1  shall  copy  into  this  Treatise.      He  says,  "it  cannot 
be  improper,  because  it  is  nearly  connected  with  the  subject  before  us,  to  enter 
upon  the  inquiry,  how  far  trading  with  an  enemy  in  time  of  actual  war  is  legal  .^ 
The  opinion  of  foreign  writers  upon  this  point,  cannot  fail  to  afford  information 
upon  the  question.     It  has  long  been  settled  in  France,  that  all  trading  with 
enemies  is  illegal,  {b)     This  indeed  is  given  as  the  reason  for  requiring  to  be 
inserted  in  the  policy  of  insurance,  the  name  and  place  of  abode  of  the  insured, 
the  effects  upon  which  the  insurance  is  made,  the  name  of  the  ship  and  the 
place  of  loading  and  unloading.     By  complying  widi  such  a  requisition,  it  is 
known  in  time  "of  war,  whether,  notwithstanding  the  prohibition  of  commerce, 
which,  according  to  these  writers,  a  declaration  of  war  always  imports,  the  sub- 
jects of  the  king  continue  to  trade  with  the  enemies  of  the  state,  or  with  their 
friends  and  allies  ;  by  which  means  they  would  be  able  to  convey  warlike  stores, 
provisions,  and  other  prohibited  goods  to  the  enemy.     But  everything  of  this 
kind  being  forbidden,  as  prejudicial  to  the  state,  would  be  liable  to  confiscation, 
and  to  be  condemned  as  prize,  whether  found  in  ships  of  our  country,  or  of 
friends  and  allies,  (c)     The  prohibition  to  insure  the  property  of  an  enemy, 
which  is  almost  generally  established  by  the  ordinances  of  foreign  countries, 
proceeds  upon  the  principle,  that  it  is  unlawful  to  trade  with  an  enemy  :  because 
-,  if  commerce  were  allowed  to  be  carried  on  between  the  hostile 
[    *641     J  ,-,g,|ions,  *there  could  not  possibly  be  an  objection  to  protect  that 
commerce  by  means  of  the  contract  of  insurance.  ((/) 

The  general  law  of  England  had  not,  till  lately,  laid  down  any  express  rule 
upon  the  subject;  but  we  must  take  notice  of  what  has  passed  in  the  Courts  of 
Justice  upon  the  question.  The  only  ancient  cases  to  be  found  in  the  books 
upon  the  subject  are  two;  the  one  is  in  Roll's  Mridpnenf,  and  happened  in 
the  thirteenth  year  of  the  reign  of  Edward  the  Second,  (e)  A  license  granted 
to  certain  merchants  to  buy  and  sell  in  Scotland,  which  Avas  then  at  war  with 
the  King  of  England,  was  declared  to  be  void  :  and  consequendy  the  trading 
held  to  be  illegal.  The  other  was  a  case  put  to  the  Judges,  in  the  time  of  Lord 
Somers,  for  their  opinion  upon  the  point,  whether  sending  corn  to  the  enemy, 
in  time  of  war  and  famine,  was  a  crime  at  the  common  law.  The  Judges  held 
it  was  a  misdemeanor.  It  is  to  be  observed,  however,  that  the  last  was  a  case 
where  provisions  were  supplied,  which,  as  well  as  warlike  stores,  must  be  pro- 
hibited from  the  nature  of  the  thing." 

The  first  modern  case,  in  which  trading  w^th  an  enemy  came  at  all  under 
consideration,  although  it  did  not  then  ^eet  with  any  decision,  was  that  of 

(a)  Park  Ins.  p.  507.  (h)  Guid.  c.  2,  art.  2,  3,  and  5;  2  Val.  3! . 

(c)  Bynk.  Qunst.  Jur.  Pub.  lib.  1,  c.  3.        (</)  Ord.  of  Stockholm,  &c.  2  Mag.  277. 
(e)  4  Roll.  Abr.  173. 


OF    ILLEGAL    VOYAGES.  353 

Henkle  against  the  Royal  Exchange  Assurance  Company,  before  Lord  Ilard- 
zvicke  in  the  Court  of  Chancery,  (c)  His  Lordship  there  said, — it  might  be 
going  too  far  to  say  that  all  trading  with  enemies  is  unlawful;  for  that  general 
doctrine  would  go  a  great  way,  even  where  only  English  goods  are  exported, 
and  none  of  the  enemy's  imported,  which  might  be  very  beneficial.  He  was 
not  satisfied  with  the  answer  given  to  the  objection  of  an  illicit  trade,  by  citing 
the  case  of  the  South  Sea  Company ;  (d)  for  that  by  no  means  determined  the 
question.  That  was  not  trading  contrary  to  the  law  of  this  country;  but  con- 
trary to  the  agreement  of  the  company  :  which  is  different  *from  a  r-  ^.(.j.y  -, 
contract  repugnant  to  the  general  law  of  the  country,  Avhethcr  sta-  L  -I 

tute,  common,  or  maritime  law.  The  same  answer  might  be  given  to  Sir 
Robert  Nightingale's  case,  which  was  merely  a  plea  in  the  Exchequer,  upon 
the  private  right  of  the  company,  being  contrary  only  to  their  statutes,  and  not 
to  the  general  law  of  the  land. 

From  this  opinion,  it  is  evident  that  the  question  was  by  no  means  settled  in 
Lord  Hardwicke' s  mind :  but  in  a  subsequent  case  of  Gist  v.  Mason,  [e)  Lord 
Mansfield  strongly  argues,  that  trading  with  an  enemy  is  not  forbidden  by  the 
general  law  of  the  country :  for  he  says,  that  several  acts  of  Parliament  have 
been  specially  passed,  in  order  to  make  such  trading  illegal,  which  proves  that 
the  Legislatm-e  did  not  think  it  was  so  before.  The  ship,  indeed,  in  the  last  of 
these  cases,  appeared  to  be  neutral ;  and  the  Court  laid  it  down,  that  it  had  no 
where  been  held  that  an  insurance  upon  a  neutral  ship  trading  to  an  enemy's 
port  was  void.  But  then  Lord  Mansfield  went  upon  the  doctrine  of  a  subject's 
trading  with  enemies,  and  concluded  thus: — By  the  maritime  law,  trading  with 
an  enemy  is  cause  of  confiscation,  provided  you  take  him  in  the  act;  but  this 
does  not  extend  to  neutral  vessels. 

The  general  principle  of  law  that  neutral  states  have  a  right  to  continue  carry- 
ing on  their  accustomed  commerce,  after  a  \var  has  broken  out,  as  during  times 
of  peace,  is  now  quite  settled,  and  forms  part  of  the  acknowledged  law  of 
nations  ;  for  it  would  be  most  unjust  if  the  interests  of  a  neutral  country  were 
to  be  affected  by  the  disagreement  and  hostile  condition  of  other  states.  But 
this  general  proposition  must  be  so  far  qualified  that  the  accustomed  commerce 
which  the  neutral  has  in  time  of  peace  been  carrying  on  with  either  of  the 
hostile  nations,  must  in  time  of  war  be  restricted  to  such  transactions  and  trade, 
as  do  not  interfere  with  the  rights  of  the  belligerent  parties,  and  the  issue  of  the 
contest.  And  therefore  the  conveying  to  an  enemy's  country  *all  ^  ^c^o  -i 
articles  contraband  of  war,  carrying  provisions,  &c.  to  a  besieged  L  J 

port,  or  succouring  in  any  way  one  of  the  belligerents  is  strictly  forbidden  of 
neutrals,  as  having  a  directly  contrary  effect  on  the  interests  of  the  other  party, 
an  act  which  a  neutral  has  no  right  to  commit,  since  by  assisting  the  one  party 
it  amounts  to  a  direct  declaration  of  hostility  against  the  odier.  (o)  And  it  is 
likewise  generally  allowed,  and  is  certainly  recognized  as  law  in  this  country, 
that  a  neutral  cannot  in  time  of  war  extend  its  trade  to  such  a  commerce  as 
arises  out  of  the  state  of  war,  and  which  it  would  not  enjoy  in  time  of  peace. 
And,  therefore,  as  almost  every  nation  naturally  confines  the  carrying  of  the 
productions  of  the  mother  country  to  her  colonies,  and  that  of  the  colonies  to 
the  mother  country  during  peace,  it  cannot  be  permitted  to  a  neutral  when  a 
nation  at  war  with  another  may  have  difficulty  in  keeping  up  a  connection  with 
her  colonies,  to  assist  her  in  doing  so  by  the  use  of  its  vessels,  which  may  have 
the  double  effect  of  supporting  the  colonies,  and  preventing  them  from  falling 

(c)   1  Ves.  317.  (rf)  See  ante,  p.  635. 

(e)   1  T.  R.  88. 

(a)  Sarah  Christina,  1  Rob.  242,  and  Marcurius,  1  Rob.   288;  Jonge  Tobias,  1  Rob. 
330 ;  the  Ringende  Jacob,  1  Rob.  9 1 . 


354  OF    ILLEGAL    VOYAGES. 

into  the  hands  of  the  enemy,  and  also  has  the  effect  of  increasing  tlie  naval  force 
of  that  nation,  (b)  And  in  pursuance  of  this  principle  of  law  several  condem- 
nations both  of  the  ship  and  cargo,  engaged  in  such  traffic  during  the  last  war, 
took  place  in  the  Admiralty  Court  of  this  country.  In  one  of  the  cases  (r)  Lord 
Stowell  says,  "upon  the  breaking  out  of  a  war  it  is  tlie  right  of  neutrals  to 
carry  on  their  accustomed  trade,  wiUi  an  exception  of  tlie  particular  cases  of  a 
r  *fi4d  1  ^^'^^^  to  blockaded  places,  or  in  contraband  articles  (in  both  of 
L  J  which  *cases  their  property  is  liable  to  be  condemned)  and  of  their 

ships  being  liable  to  visitation  and  search.  The  general  rule  is,  tliat  the  neutral 
has  the  right  to  carry  on,  in  time  of  war,  his  accustomed  trade  to  the  utmost 
extent  of  which  that  accustomed  trade  is  capable.  Very  different  is  the  trade 
which  the  neutral  has  never  possessed,  which  he  holds  by  no  tide  of  use  and 
habit  in  times  of  peace,  and  which  in  fact  can  obtain  in  war  by  no  other  title 
than  by  the  success  of  the  one  belligerent  against  the  other,  and  at  the  expense  of 
that  very  belligerent,  under  whose  success  he  sets  up  his  title,  and  such  I  take 
to  be  the  colonial  trade  generally  speaking."  Such  a  trade,  therefore,  is  illegal, 
and  every  insurance  upon  such  voyages  would  be  void.  And  sentence  of  con- 
demnation on  such  grounds  would  be  conclusive  proof  of  a  breach  of  a  warranty 
of  neutrality. 

The  general  question,  as  to  the  legality  of  trading  with  an  enemy  is  now  for 
ever  at  rest  in  the  law  of  England,  by  the  decision  of  the  Court  of  King's 
Bench,  in  the  case  of  Potts  v.  Bell,  [a)  upon  a  writ  of  error  from  the  Court  of 
Common  Pleas,  in  which  it  was  held  by  Lord  Kenyan,  Grose,  Lawrence,  and 
Le  Blanc,  Justices,  that  it  was  a  principle  of  the  common  law,  that  trading 
with  an  enemy,  witiiout  the  king's  license,  is  illegal  in  British  subjects. 

It  was  decided  in  the  case  of  Feise  v.  Jlguilnr,  {b)  if  a  British  subject  is 
interested  in  part  of  the  cargo  on  a  valued  policy,  he  may  recover  to  the  extent 
of  it  on  a  count  averring  the  interest  in  himself  5  although  alien  enemies  may  be 
interested  in  other  parts  of  the  cargo. 

This  power  of  licensing  particular  trades  with  hostile  states  in  time  of  war, 
is  a  part  of  the  prerogative  of  the  crown,  inherent  in  itself,  receding  in  that 
respect  from  its  own  rights  in  time  of  war;  and  for  the  time,  for  the  purposes, 
and  to  the  extent  in  the  license  mentioned,  turning  the  state  of  war  into  a  state 
r  *fi4Pi  -1  of  peace.  But  as  various  restrictions  were  imposed  *by  statutes, 
L  J  the  king  of  course  could  not  by  virture  of  his  prerogative,  dispense 

with  them ;  and  therefore  it  was  necessary  for  the  Legislature,  during  the  long, 
protracted,  and  unexampled  mode  of  warfare  in  which  this  country  was  engaged 
for  upwards  of  twenty  years,  to  pass  various  acts  of  Parliament,  empowering 
the  sovereign  to  do  that,  which  he  should  think  advisable,  and  which  his  pre- 
rogative alone  had  not  enabled  him  to  effect,  (o) 

By  virtue  of  the  power  granted  to  the  king  by  these  statutes  and  his  own 
royal  prerogative,  the  trade  of  this  country  was  preserved  :  for  the  sovereign 
had  thus  the  power  of  giving  an  enemy  liberty  to  export  or  import  j  he  might 


(i)  And  therefore  in  the  war  of  1756,  where  the  French  being  unable,  on  account  of  the 
maritime  superiority  of  this  country,  to  carry  on  tlieir  colonial  trade  themselves,  repealed 
their  exclusive  laws  and  opened  their  trade  to  the  ships  of  neutral  powers,  this  was  held  by 
Great  Britain  to  be  a  direct  interference  with  her  maritime  rights.  See  Manning's  Gomm. 
p.  196. 

(c)  The  Innnanucl,  2  Rob.  A.  R.  198.  See  Barker  v.  Blakes,  9  East,  283.  Bromley 
V.  Heseltinc,  1  Camp.  75.  («)    8  T.  R.  548. 

{!))  3  Taunt.  506.  See  Cohen  v.  Hannan,  5  Taunt.  101.  Hagedorn  v.  Reid,  1  M.  «fe 
S.  566. 

(a)  The  material  statutes  were  the  43  Geo.  3,  c.  153;  45  Geo.  3,  c.  34;  46  Geo.  3,  c. 
Ill;  47  Geo.  3,  c.  27;  48  Geo.  3,  c.  37;  48  Geo.  3,  c.  126 ;  49  Geo.  3,  c.  25  and  60. 
Parkins.  511,  512. 


OF    ILLEGAL    VOYAGES.  355 

place  whole  districts  of  hostile  countries  in  a  state  of  peace,  and  might  exempt 
individuals,  either  his  own  subjects  or  those  of  other  nations,  from°the  opera- 
tions of  war. 

Though  the  king  was  thus  empowered  to  license,  he  might  also  qualify  his 
license,  in  which  case  the  party  seeking  to  protect  himself  under  it  must  con- 
form exactly  to  its  requisitions.  The  questions  which  arose  in  our  Common 
Law  Courts  upon  the  constructions  of  these  licenses,  granted  under  statutes, 
were  extremely  various  :  but  as  they  turned  in  many  cases  upon  the  precise 
words  used ;  as  at  one  time  a  more  strict  construction  was  put  upon  them  than 
at  others ;  and  as  most  of  those  cases  have  been  discussed  in  the  Court  of 
Admiralty,  by  the  very  learned  Judge,  Lord  Stowell,  who  presided  in  it,  with 
a  profundity  of  learning  and  accuracy  of  judgment  seldom  equalled,  never  sur- 
passed, it  is  impossible,  without  swelling  this  work  to  a  most  inconvenient 
length  to  attempt  to  follow  the  decisions,  either  in  one  Court  or  in  the  others. 
Nor  is  it  very  material  to  do  so,  as  neither  questions  of  fact,  nor  the  construc- 
tion of  particular  documents,  unless  some  general  rule  arises  out  of  them,  can 
be  very  material,  and  as  the  main  question  in  all  of  them  was  much  discussed 
*when  the  cases  of  Usparicha  v.  Noble,  Menett  v.  Bonham,  and  r-  .„  .  -, 
Minclt  V.  Crokatt,  (a)  were  decided.  L    ^""^^     J 

So  also  in  the  case  of  Vandyck  v.  Whitmore,  (6)  where  the  license  to  trade 
was  on  the  express  condition,  that  bond  be  given  in  such  penalty  by  such  per- 
sons, and  in  such  manner,  as  the  commissioners  of  the  customs  shall  direct, 
that  the  goods  shall  be  exported  to  the  places  proposed,  and  to  no  other ;  and 
that  a  certificate  shall  be  produced  within  six  months  from  the  British  consul, 
or  other  person  there  described,  that  the  goods  have  been  landed ;  if  the  ])ond 
be  not  given,  the  license  is  void,  the  voyage  illegal,  and  cannot  be  insured. 

A  similar  decision  had  been  made  in  Vanharthals  v.  Hcdhead,  Mic,  31 
Geo.  3,  on  the  stat.  of  16  Geo.  3,  c.  5,  on  which  the  case  of  Johnston  v. 
Sutton,  (c)  had  been  decided,  [d) 

But  although  the  Courts  of  Law  were  in  the  first  instance  disposed  to  con- 
strue these  licenses  strictly,  (e)  it  was  at  length  considered  that,  as  the  object  of 
the  licenses  was  to  facilitate  the  commerce  of  the  country,  that  they  ought, 
therefore,  to  receive  a  liberal  construction ;  and  therefore  Lord  Chief  Justice 
Gifford  held,  in  the  case  of  Lemecke,  v.  Vcmghan,  (/)  that  the  misdescription 
of  tlie  person  to  whom  a  license  had  been  granted  by  the  crown  did  not  invali- 
date the  license,  that  the  object  of  the  license  was  simply  to  legalize  the  adven- 
ture, and  the  conditions  imposed  were  applicable  to  ihe  ship  employed,  and  not 
to  the  person,  and  that  as  these  conditions  had  been  complied  with,  it  was  not 
material  that  a  misdescription  had  been  made  of  the  residence  of  the  merchant 
obtaining  the  license. 

*And  Lord  Stowell,  in  the  case  of  the  Adeon,  (a)  says: — "It  p  ^^.  -, 
is  true  that  the  license  which  had  been  here  granted  in  the  usual  L  "* '  J 
manner,  had  afterwards  been  purchased  for  money  in  America,  but  I  do  not 
see  what  difference  that  can  make  in  the  consideration  of  the  case,  for  if  the 
license  was  general,  which  it  appears  to  have  been,  it  could  be  of  no  conse- 
quence who  were  the  individuals  who  acted  under  it,  provided  they  complied 


(a)  See  also  the  judgments  in  Robinson's,  Edwards',  and  Acton's  Reports  in  the  Admi- 
ralty, and  in  our  Courts  of  Common  Law,  in  addition  to  the  cases  already  detailed  and 
referred  to  in  this  work,  are  those  of  Schroeder  v.  Vaux,  15  East,  52,  Blackburne  v. 
Thompson,  15  East,  81.  Rucker  v.  Allnutt,  15  East,  278,  Siffken  v.  Allnutt,  1  Maule  & 
S.  39.     Hagedorn  v.  Bell,  1  Maule  &  S.  450. 

(b)  1  East,  475.  (c)  Ante,  p.  631. 

(d)   1  East,  487,  note  (a).  (e)  Klingender  v.  Rond,  14  East,  484. 

(/)   1  Bing.  473.  (a)  2  Dods.  A.  R.  53. 


356  OF    ILLEGAL   VOYAGES. 

with  the  conditions  annexed  to  it;  there  is  nothing  wliatsoever  to  show  that  the 
parties  acted  otherwise  than  in  strict  conformity  to  the  spirit  and  letter  of  the 
original  Ucense,  signed  by  the  Secretary  of  State  in  London,  and  I  must  pre- 
sume so  from  the  circumstance  of  their  obtaining  permission  from  the  British 
minister  in  Spain  to  carry  back  a  cargo  to  America.''^  (h) 

The  Court  of  King's  Bench  have  held  in  a  recent  case  of  Camelo  v.  Brit- 
ten, (c)  that  where  a  license  for  the  exportation  of  gunpowder,  was  granted  on 
the  application  of  the  manufacturer  of  the  gunpowder  on  behalf  of  himself  and 
others,  on  condition  that  the  merchant  exporter  should  give  a  certain  security 
therein  mentioned;  and  the  manufacturer  sold  the  gunpowder  to  another  party, 
and  contracted  with  him  to  deliver  it  on  board  a  ship,  the  condition  of  this 
license  was  not  complied  with  by  the  manufacturer  giving  the  required  security, 
he  not  being  the  merchant  exporter  within  the  meaning  of  the  license. 

And  in  the  case  of  Gordon  v.  Vaughan,  {d)  if  the  license  contain  a  condi- 
tion which  is  only  colourably  compUed  with,  it  shall  be  deemed  a  fraud  upon 
the  license  and  avoid  it. 

And  the  person  having  the  license,  must  show  he  was  authorized  to  obtain 

it,  Rawlinson  v.  Jansen.  (e)     And  if  the  license  be  general,  he  must  show,  by 

1  evidence,  that  his  use  *of  it  was  lawful,  from  whom  he  received 

L    ^^'*^     J  it,   and    how   he  connects  his  own  particular  adventure  with  it. 

Barlow  v.  Mcintosh,  (a) 

And  Lord  Stoivdl  held  in  a  late  case  of  the  Louise  Charlotte  de  Giddene- 
roni,  {b)  that  the  fraudulent  alteration  of  a  license  destroys  its  validity,  even 
where  the  person  claiming  protection  under  it  is  innocent  of  the  fraud.  In 
giving  judgment,  his  Lordship  says,  "It  appears  very  certain  that  the  date  of 
the  license  under  which  the  present  claim  is  made,  has  been  altered,  and,  con- 
sequendy,  that  the  license  itself  must  become  a  mere  nullity.  It  is  said,  how- 
ever, that  although  there  may  have  been  a  fraudulent  alteration  in  the  date  of  the 
license,  yet  the  present  holders,  who  were  entirely  ignorant  of  that  alteration, 
and  who  purchased  the  license  at  a  large  price  in  the  market  overt,  ought  not 
to  be  the  sufferers.  There  is  hardly  any  evidence  which  would  satisfy  the 
Court  that  the  alteration  of  the  date  might  not  be  the  act  of  the  party  himself 
by  whom  the  benefit  of  the  license  is  claimed ;  and,  though,  it  is  not  at  all 
necessary  for  me  to  infer  fraud  against  the  party  now  before  the  Court,  I  must, 
for  the  sake  of  guarding  against  fraudulent  acts  of  this  kind,  adhere  to  the  gene- 
ral rule,  that  the  party  claiming  the  benefit  of  a  license,  must  shew  a  license 
unimpeached.  The  present  case  may  be  of  great  hardship  upon  an  innocent 
individual,  but  I  cannot  take  upon  myself  to  say  that  a  license  which  has  been 
vitiated  in  so  material  a  point,  can  be  deemed  valid;  and,  therefore,  I  feel 
myself  under  the  necessity  of  pronouncing  a  sentence  of  condemnation." 

And  also  the  Courts  of  Justice  will  permit  everything  to  be  done,  though 
not  expressed,  which  is  necessary,  in  order  to  effectuate  the  intention  of  his 
Majesty  in  granting  the  license,  ttt  res  magis  valeat,  quum  pereat.  Thus  in 
a  case  of  Kensington  v.  Liglis,  in  Error,  (c)  decided  in  the  Court  of  King's 
-  Bench,  upon  a  biU  of  exceptions  tendered  to  Lord  Chief  *Justice 
L  '  649  J  Mansfield  at  Nisi  Priiis,  in  the  Court  of  Common  Pleas,  the  fol- 
lowing facts  appeared  in  evidence,  and  which  are  all  that  are  material  for  the 


(b)  This  was  the  case  of  a  license  granted  by  the  British  government  in  1812,  to  allow 
any  ship,  except  French,  to  import  corn  into  Cadiz  from  any  port  in  the  United  States. 
Licenses  transmitted  from  this  country  to  America  by  the  merchants  here,  and  were  disposed 
of  as  occasion  might  require.  (c)  4  B.  &  A.  184. 

(rf)    12  East,  302,  note  {b).  (e)    12  East,  223. 

(a)   12  East,  311.     Bush  v.  Bell,  16  East,  3.     Rohinson  v.  Morris,  5  Taunt.  720. 

\b)   1  Dods.  308.  (c)  8  East,  273. 


OF    ILLEGAL    VOYAGES.  357 

discussion  of  this  point.  The  plaintiffs  in  the  Court  below  brought  their 
action  against  Mr.  Kensington,  an  underwriter,  on  a  policy  dated  Febritan/, 
1800,  at  and  from  the  Havannah  and  Alalanzas,  or  any  other  port  or  ports  in 
Cuba,  to  Nassau,  New  Providence,  upon  goods,  and  also  upon  ship  or  ships 
sailing  between  two  given  periods  of  time.  The  declaration  averred  that  Ken- 
sington subscribed  the  policy  for  500/.  on  goods  and  specie,  and  that  by  a  sub- 
sequent menioranduni  it  was  agreed,  that  the  value  of  any  vessel  or  vessels  that 
should  carry  the  goods  insured  should  be  included  in  that  insurance  :  and  that 
Robert  Read,  for  whose  benefit  the  insurance  on  the  goods  and  specie  was 
made,  was  interested  in  such  goods  and  specie,  and  that  one  Juan  Villas,  for 
whose  benefit  the  insurance  on  the  ship  Hector  was  made,  was  interested 
therein.  Tlie  second  count  of  the  declaration  averred  that  the  ship  Hector,  on 
board  which  the  goods  and  specie  were  loaded,  did  not  belong  to  his  Majesty, 
or  any  of  his  subjects. 

The  bill  of  exceptions,  amongst  the  other  necessary  facts  not  material  here, 
stated  that  Ins:;! is  S,-  Co.  effected  the  policy,  and  that  a  certain  cargo  of  goods 
and  specie  belonging  to  Robert  Read  had  been  shipped  at  the  Havannah  on  his 
account,  being  part  of  the  property  insured,  on  board  the  Hector,  and  that  the 
policy  was  made  in  respect  of  the  said  goods  and  specie  for  his  benefit,  and  in 
respect  of  the  said  ship  for  the  benefit  of  the  said  Juan  Villas,  and  that  Juan 
Villas  was  a  Spaniard  by  birth,  then  and  still  residing  in  the  dominions  of,  and 
adhering  to.  the  King  of  Spain,  between  whom  and  the  King  of  Great  Britain 
there  existed  an  open  war,  as  well  at  the  time  of  effecting  the  policy,  as  also  at 
the  time  of  trial ;  but  that  the  action  was  commenced  in  time  of  peace.  The  loss 
of  the  ship  by  perils  of  the  sea  is  then  stated  between  the  Havannah,  a  colony 
of  the  King  of  Spain,  and  Nassau,  a  colony  of  our  king.  The  bill  of  excep- 
tions further  stated,  as  applicable  to  this  point,  his  Majesty's  *in-  r-  ^„_„  -, 
structions  to  Gen.  DowdesiveU,  Governor  of  the  Bahama  Islands,  L  J 

{Neiu  Providence  being  one,)  authorizing  him  to  grant  licenses  for  the  impor- 
tation into  those  islands  of  specie  and  such  goods  as  were  loaded  on  board  the 
Hector,  in  any  British  or  Spanish  vessel  of  a  certain  build,  (within  Avhich  the 
ship  Hector  might  be  classed.)  from  any  Spanish  colony  in  America,  notwith- 
standing the  then  existing  hostilities :  and  the  commanders  of  his  Majesty's 
ships,  and  also  privateers,  were  enjoined  not  to  detain  or  molest  any  vessel 
trading  between  the  ports  therein  specified,  conformably  to  the  said  regulations, 
and  having  a  license  for  that  purpose.  It  further  appeared,  that  a  license  was 
granted  by  the  governor  to  Robert  Read,  for  the  Hector,  for  the  voyage  out  and 
home,  and  was  not  limited  in  point  of  time,  and  was  to  enable  the  Hector  to 
bring  the  goods  therein  enumerated  from  the  Spanish  setdement  to  Neiv  Pro- 
vidence; that  by  the  laws  of  Spain  vessels  coming  from  a  Spanish  settlement, 
in  time  of  war,  cannot  clear  for  a  British  port,  but  it  is  the  practice  to  clear 
for  a  Spanish  or  neutral  settlement :  that  the  witness  (who  was  the  governor's 
secretary)  knew  the  Hector  to  be  a  Spanish  vessel,  and  the  property  of  a 
Spaniard,  and  she  was  so  described  in  the  license.  Upon  this  point  the  coun- 
sel for  the  underwriter,  Kensington,  objected  at  the  trial,  that  although  the 
voyage  and  trade  were  licensed,  the  plainuffs  Inglis  ^~  Co.  could  not  enforce  a 
policy  for  the  benefit  of  Juan  Villas,  so  being  such  alien  enemy  as  aforesaid. 
But  the  Chief  Justice  Mansfield  was  of  opinion,  that  a  ship  belonging  to  an 
alien  might,  when  so  licensed,  be  lawfully  insured  by  a  British  subject?  and 
that  the  policy  so  effected  might  be  enforced  by  such  British  subject  in  a  Court 
of  Law,  for  the  benefit  of  such  alien  owner.  This  opinion  was  excepted  to ; 
and  after  argument  upon  the  bill  of  exceptions,  in  which  it  was  contended,  that 
the  license  only  protects  the  goods,  but  does  not  give  to  an  alien  enemy  the 
right  to  sue  either  in  his  own  name,  or  in  the  name  of  his  trustee,  the  Court 
ook  time  to  deliberate  j  and  now 


358  OF    ILLEGAL   VOYAGES. 

r  *pKi  -1  Lord  Ellenborotigh  delivered  tlie  unaniinoiis  judfrment  of  *the 
L  "^^  -J  Court.  "As  to  the  second  question,  whether  tlie  plaintifls  upon 
this  record,  who  are  British  subjects,  duly  competent  to  sue  in  their  own  per- 
sons, can,  in  a  Court  of  Law,  enforce  by  suit  a  policy  for  the  benefit  of  another 
person,  who  was  an  alien  enemy  when  the  policy  was  efl'ected,  was  so  at  the 
trial,  and  still  is  so ;  the  negative  is  strongly  contended  for  on  behalf  of  the 
underwriter,  on  the  authority  of  the  cases  of  Brisfow  v.  Toivers,  (d)  and 
Brandon  v.  Nesbitt.  (e)  But  it  will  be  recollected  that  in  those  cases  die  party 
interested,  and  on  whose  behalf  the  suit  was  maintained,  was  an  alien  enemy, 
against  whose  recovery,  through  the  medium  of  his  British  trustees  there 
existed  this  objection,  that  the  property  to  be  covered  by  the  policy  belonged  to 
an  alien  enemy,  and  that  any  protection  afforded  to  such  properly  by  means  o( 
a  contract  of  indemnity,  direcdy  and  materially  contravened  the  public  interest, 
which  was  concerned  in  the  precariousness  or  destruction  of  such  property. 
In  the  present  instance  no  such  public  policy  of  the  country  is  contravened  by 
sustaining  and  giving  effect  to  such  a  trust;  but  on  the  contrary,  diis  country, 
in  furtherance  of  the  same  policy,  which  allows  the  granting  of  licenses  to 
authorize  the  trade,  ought  to  give  effect  to  the  ordinary  means  of  indemnity,  by 
which  that  trade  (from  the  continuance  of  which  the  public  must  be  supposed 
to  derive  a  benefit)  might  be  best  promoted  and  secured.  And  although  the 
king's  license  cannot,  in  point  of  law,  have  the  effect  of  removing  the  personal 
disability  of  the  trader,  in  respect  of  suit,  so  as  to  enable  him  to  sue  in  his  own 
name;  it  purges  the  trust  in  respect  to  him,  of  all  those  injurious  qualities  in 
regard  to  the  public  interest,  which  constituted  the  public  ground  of  objection 
to  the  trust  in  the  two  cases  just  referred  to,  and  which  have  been  so  much 
relied  upon  on  the  part  of  the  plaintiff  in  error.  As  therefore  there  is  in  this 
case  no  legal  incompetence  to  sue  in  the  parties  actually  suing,  and  no  public 
interest  which  stands  in  the  way  of  maintaining  this  suit,  for  the  benefit  of 
r  *fi-9  ~l  those  who  were  the  ^objects  of  the  license  authorizing  the  trade  in 
L  '^  J  question,  it  does  not  appear  to  us  that  the  right  of  the  assured  to 
recover  can  well  be  resisted  on  Uiat  ground." 

It  was  questioned,  in  Shroeder  v.  Vaux,  (a)  whether  it  was  necessary,  where 
a  ship  was  licensed  for  a  given  time,  that  the  whole  voyage  must  be  concluded 
within  that  time :  liord  Ellenhorough  and  the  whole  Court  of  King's  Bench 
were  of  opinion,  that  it  never  was  intended  that  if  the  adventure  licensed  were 
bona  fide  prosecuted  within  any  part  of  the  time  mentioned,  it  should  become 
illegal,  because  by  some  accident  the  voyage  was  protracted  beyond  that 
period,  [b) 

The  same  construction  has  been  put  upon  those  licenses  in  the  Court  of 
Admiralty,  and  Lord  StoweJl  laid  it  down  as  a  general  rule,  "that  where  no 
fraud  has  been  committed,  where  no  fraud  has  been  meditated  as  far  as  appears, 
and  where  the  parties  have  been  prevented  from  carrying  the  licenses  into  exe- 
cution by  a  power  which  they  could  not  control,  they  shall  be  entided  to  the 
benefit  of  its  protection,  although  the  terms  may  not  have  been  literally  and 
stricUy  fulfilled."      Good  Hope,  (c) 

The  next  question  which  comes  to  be  considered  is, — Whether  it  be  lawful 
to  insure  the  property  of  an  enemy,  when  not  protected  by  a  license.^  What- 
ever doubts  might  formerly  obtain  in  England  either  as  to  the  legality  or  expe- 


(rf)  6  T.  R.  35.  (e)  6  T.  R.  23,  see  post, 

(a)   15  East,  52. 

(/>)  Frceland  v.  Walker,  4  Taunt.  478,  and  Lewis  v.  Cormac,  4  Taunt.  483,  in  notes, 
and  sec  Groning  v.  Crockett,  3  Camp.  83. 

(c)  Edwards'  Cases  on  Licenses,  6.     See  Evereth  v.  Tunno,  1  B.  &  A.  142. 


OF    ILLEGAL    VOYAGES.  359 

(lieney  of  such  insurances,  the  question  was  finally  settled,  as  we  have  seen  by 
the  case  of  Potts  v.  Bell,  [d)  The  late  Mr.  justice  Park  seems  to  have 
thoujjht  that  the  question  was  settled  by  the  two  following  cases  of  Brandon 
V.  Ne.sbitt  and  Br'isto^v  v.  Toicers ;  [e)  but  it  is  clear  that  there  was  no  direct 
determination  of  the  question  in  these  cases,  having  been  decided  on  the  short 
ground  of  "alienage." 

*The  first  of  those  cases  was  Brandon  v.  Nesbiff,  (a)  which  ^  ^„  -, 
was  an  action  on  a  policy  of  insurance  on  goods  on  board  the  L  -J 

Greyhound^  an  .American  ship,  at  and  from  London  to  Bayonne:  there  was 
an  averment  in  the  declaration  that  the  policy  was  eflected  for  the  benefit  and 
on  the  account  of  David  Brandon,  Isaac  and  David  Valery,  and  others,  who 
were  interested  in  the  goods ;  and  another  averment  that  the  ship  was  captured 
as  prize.  The  defendant  pleaded  that  the  persons  in  whom  the  interest  was 
averred  to  be  were  aliens  born,  and  that  before  the  ship  sailed  they  were  become 
alien  enemies  of  our  king. 

The  second  plea  stated,  that  the  persons  interested  were  living  in  France, 
and  enemies,  and  that  the  goods  were  sent  from  London,  after  the  commence- 
ment of  the  war,  for  the  purpose  of  being  landed  and  delivered  in  France  to  the 
king's  enemies,  [b)  The  replication  to  the  first  plea  stated,  that  the  persons 
interested  were  indebted  to  the  present  plaintift"  in  more  than  the  value  of  the 
goods  insured.  The  replication  to  the  second,  that  the  goods  insured  were  not 
prohibited  at  the  time  of  the  policy,  and  that  they  were  shipped  before  the  com- 
mencement of  the  war.     To  these  replications  there  were  demurrers. 

Lord  Kenyon,  in  giving  the  opinion  of  the  Court,  said,  that  they  had  con- 
sidered this  case,  and  unless  anything  more  could  be  urged  at  the  Bar  to  shake 
the  opinion  they  had  formed,  they  were  of  opinion  tliat  judgment  must  be  given 
for  the  defendant,  on  this  ground  that  an  action  will  not  lie  either  by  or  in  favour 
of  an  alien  enemy. 

The  next  case  of  Bristoiv  v.  Towers,  (c)  which  came  on  in  the  same  Term, 
and  was  argued  upon  a  special  verdict,  in  which  the  only  point  discussed  was 
the  legality  of  insurances  on  enemy's  property ;  and  the  principle  of  the  deci- 
sion in  ^Brandon  v.  Nesbitt  was  held  so  clearly  to  control  the  p  jiRcj^  -i 
other,  that,  on  the  authority  of  that  decision,  the  counsel  for  the  L  J 

plaintiff  abandoned  the  second  argnment,  which  the  Court  had  ordered. 

The  special  verdict  stated  that  the  plaintiff,  on  the  13th  March,  1793,  being 
then  resident  in  Great  Britain,  in  pursuance  of  an  order  for  that  purpose, 
caused  the  insurance  in  question  to  be  made  on  account  of  Arrouet,  Massot,  &c., 
and  that  the  goods  insured  were  by  the  policy  warranted  French  property,  and 
were  so  in  fact;  that  the  goods,  which  consisted  of  buttons,  buckles,  &c.,  of 
the  manufocture  of  this  kingdom,  were  shipped  on  board  the  Nancy,  (an  Jimer- 
icrtn  ship)  on  the  19th  March,  1793,  by  Messrs.  Humphreys,  oi  Birmingham, 
in  compliance  with  orders  received  in  January,  1793,  from  Messrs.  Arrouet, 
Massot,  &c.,  who  were  and  still  are  subjects  of  France;  that  by  two  orders  in 
council  of  11th  February,  1793,  general  reprisals  were  granted  against  the 
ships,  goods,  and  subjects  of  France,  and  a  general  embargo  was  laid  on  all 
vessels  in  Great  Britain,  but  by  an  another  order  of  26th  February,  the  said 
general  embargo  was  declared  not  to  extend  to  foreign  vessels  belonging  to  the 


(</)  8  T.  R.  548,  (e)  See  Furtado  v.  Rogers,  post. 

(«)  6  T.  R.  23. 

{b)  In  a  plea  of  alien  enemy  the  defendant  must  state  that  the  plaintifT  was  born  in  a 
foreign  country  at  enmity  with  this  country,  and  that  he  is  not  residing  here  under  letters 
of  safe-conduct  from  the  king.     Casseres  v.  Bell,  8  T.  R.  166. 

(c)  6  T.  R.  35. 


360  OF    ILLEGAL   VOYAGES. 

subjects  of  any  state  in  amity  with  his  Majesty,  but  that  they  might  forthwith 
prooeetl  on  their  respective  voyages,  provided  the  cargo  did  not  consist  of  naval 
or  military  stores,  or  any  other  article  the  exportation  whereof  was  prohibited 
by  any  law  or  order  of  council  then  in  force.  The  verdict  then  states  the  sail- 
ing of  the  ship  on  the  voyage  insured  on  the  21st  of  March,  1793,  the  subse- 
quent capture  of  tlie  vessel  by  some  English  subjects,  and  the  condemnation 
of  tlie  goods  insured  as  French  property. 

This  special  verdict  was  fully  argued  at  the  Bar,  and  a  second  argument  was 
ordered ;  but,  after  the  decision  of  Brandon  v.  Nesbitt,  the  counsel  for  the 
plaintiff  said  that  he  declined  the  further  argument  of  the  case,  as  he  had  no  hopes 
of  convincing  the  Court  that  this  case  could  be  distinguished  from  the  principle 
upon  which  the  former  had  been  so  recently  determined. 

r  *RFip;  n  *Lord  Kenyon. — "It  appears  to  the  Court  in  the  same  light, 
L  J  and  there  must  be  judgment  for  the  defendant." 

In  the  case  of  Furtado  v.  Boilers,  («)  it  was  clearly  decided  that  all  insu- 
rances upon  foreign  ships  must  be  understood  as  virtually  containing  an  excep- 
tion in  the  case  of  British  capture,  and  in  this  case  it  was  held  that  even  a 
French  ship  that  was  insured  in  En2;land,  previous  to  the  commencement  of 
hostilities  between  Great  Britain  and  France,  was  not  protected  by  the  policy 
in  the  case  of  a  loss  by  British  capture,  after  the  hostilities  had  commenced. 

Lord  Alvanley,  in  delivering  the  judgment  of  the  Court,  said,  "There  are 
two  questions  for  our  consideration,  1st,  Whether  it  be  lawful  for  a  British 
subject  to  insure  the  ship  of  an  enemy  from  the  effect  of  capture  made  by  his 
own  government.^  2ndly,  Whether,  if  that  be  illegal,  the  insurance  in  this  case 
havino-  been  made  previous  to  the  commencement  of  hostilities  will  make  anv 

O  I  •■ 

difference.'^  As  to  the  first  point,  it  has  been  understood  for  some  years  past  to 
have  been  the  opinion  of  all  AVestminster  Hall,  and,  I  believe,  of  the  nation  at 
large,  that  all  such  insurances  are  illegal,  and  incapable  of  being  enforced  in  a 
Court  of  Justice.  Mr.  Park  seems  to  consider  the  cases  of  Brandon  v.  Nes- 
bitt, ij))  and  Bristow  v.  Toivcrs,  (c)  as  having  decided  the  point  ;(r/f)  but  after 
looking  accurately  into  all  the  cases,  I  admit  there  is  no  direct  determination. 
The  above  two  cases  proceeded  on  the  short  srround  of  "alienage,"  which  was 
sufficient  to  support  the  decision,  without  entering  into  the  other  question." 
His  Lordship,  after  referring  to  the  uncertainty  of  the  matter  which  had  existed 
for  some  years,  and  referring  to  the  opinion  of  Mr.  J.  Bxdler  (e)  on  the  sub- 
ject, goes  on  to  say: — "We  can  only  say,  that  although  many  persons  have 
recovered  in  such  actions,  it  is  equally  true  that  doubts  have  been  entertained 
by  many  persons  as  to  their  right  to  recover,  and  that  most  of  those  who  were 
r  *fi"^  "1  i'i^*^i""if"^  upon  the  subject  *were  firmly  persuaded  that  the  objec- 
L  J  tion  miufht  have  been  made  with  success.     This  affords  a  sufficient 

vindication  to  the  Courts  of  this  country  in  now  deciding  this  point  against  a 
foreigner.  In  the  year  1748  an  act  {a)  passed,  prohibiting  the  insurance  of 
French  ships  and  goods  during  the  war ;  this  was,  at  least,  a  legislative  declara- 
tion of  the  impolicy  of  such  insurances  at  that  time. 

From  the  expiration  of  that  act  to  the  passing  of  the  33  Geo.  3,  c.  27,  s.  4, 
no  legislative  interference  upon  the  subject  ever  took  place,  and  previous  to  the 
last  act,  the  policy  in  question  was  made.  The  question,  then  is,  Avhether  the 
law  does  not  make  that  exception,  and  whether  it  be  competent  to  an  English 
underwriter  to  indemnify  persons  who  may  be  engaged  in  war  with  his  own 
sovereign  against  the  consequences :  by  the  terras  of  the  policies,  the  under- 

(«)  3  B.  &  P.  191.  {t))   Ante,  p.  653. 

(c)  Ante,  p.  653.  {d)  See  Park  Ins.  519. 

(e)  See  his  judgment  in  Bell  v.  Gibson,  1  B.  &  P.  p.  354. 
(«)   21  Geo.  ^^c.  4. 


OF    ILLEGAL    VOYAGES.  361 

writers  certainly  undertake  to  indemnify  the  assured  against  all  captors  and 
detentions  of  princes,  without  any  exception  in  respect  of  the  acts  of  the  gov- 
ernment of  their  own  nation?  We  are  all  of  opinion,  on  the  principles  of  the 
English  law,  it  is  not  competent  to  any  subject  to  enter  into  a  contract  to  do 
anything  which  may  be  detrimental  to  the  interests  of  his  own  country ;  and 
that  such  a  contract  is  as  much  prohibited  as  if  it  had  been  expressly  forbidden 
by  act  of  Parliament.  It  is  admitted,  that  if  a  man  contract  to  do  a  thing  which 
is  afterwards  prohibited  by  act  of  Parliament,  he  is  not  bound  by  his  contract : 
this  was  expressly  laid  down  in  Brewster  v.  Kitchell:  {b)  and  on  the  same 
principle,  where  hostilities  commence  between  the  countries  of  the  assured  and 
the  underwriter,  the  latter  is  forbidden  to  fulfil  his  contract. 

With  respect  to  the  expediency  of  these  insurances,  it  seems  only  necessary 
to  quote  a  single  line  from  Bynkershoek,  (c)  and  part  of  a  passage  in  Valin.  (d) 

The  former  says,  "Hostium  periciila  in  se  suscipere  quid  est  aliud  quam 
eorum  maritima  promovere;"  and  the  latter,  speaking  of  the  conduct  of  the 
English  during  the  war  *of  1756,  who  permitted  these  insurances,  ^  ^^__,  -, 
says,  "The  consequence  was,  that  one  part  of  this  nation  restored  ^  J 

to  us  by  the  efiect  of  insurance,  what  the  other  took  from  us  by  the  rights  of 
war." 

There  is  no  express  declaration,  therefore,  either  for  or  against  the  legality 
of  such  insurances,  and  the  question  comes  now  to  be  decided  for  the  first  lime. 
We  are  all  of  opinion,  that  to  insure  enemies'  property  Avas  at  common  law 
illegal,  for  the  reasons  given  by  the  two  foreign  writers  to  whom  I  have  referred. 
If  this  be  so,  a  contract  of  this  kind  entered  into  previous  to  the  commence- 
ment of  hostilities  must  be  equally  unavailable  in  a  Court  of  law,  since  it  is 
equally  injurious  to  the  interests  of  the  country ;  for  if  such  a  contract  could 
be  so  supported,  a  foreigner  might  insure  previous  to  the  war,  against  all  the 
evils  incident  to  the  war.  But  it  is  said  that  the  action  is  suspended,  and  that 
the  indemnity  comes  so  late  that  it  does  not  strengthen  the  resources  of  the 
enemy  during  the  war.  The  enemy,  however,  is  very  little  injured  by  cap- 
tures for  which  he  is  sure  to  be  repaid,  at  some  time  or  other,  by  the  under- 
writers. 

Since  the  case  of  Bell  v.  Potts,  it  has  been  universally  understood  that  all 
commercial  intercourse  with  the  enemy  is  illegal  at  common  law,  and  that, 
consequently,  all  insurances  founded  upon  such  intercourse  are  also  illegal. 
Why  are  they  illegal.'*  Because  they  are  in  contravention  of  his  Majesty's 
object  in  making  war,  which  is  by  the  capture  of  the  enemy's  property,  and 
by  the  prohibition  of  any  beneficial  intercourse  between  them  and  his  own 
subjects  to  cripple  their  commerce.  The  same  reasoning  which  influenced  the 
Court  of  King's  Bench  in  their  decision  in  Bell  v.  Potts,  seems  decisive  in 
the  present  case.  For  it  being  determined  that  during  war  all  commercial 
intercourse  with  the  enemy  is  illegal,  at  common  law,  it  follows,  that  whatever 
contract  tends  to  protect  the  enemy's  property  from  the  calamities  of  war, 
though  made  antecedent  to  the  war,  is,  nevertheless  illegal.  I  forbear  to  enter 
into  the  argument  suggested  at  the  Bar,  in  favour  of  the  defendant,  that  the  law 
Avill  not  enforce  a  contract  ^founded  on  a  transaction  detrimental  to  p  sako  n 
the  public  policy  of  the  state.     The  ground  upon  which  we  decide  L  -^ 

this  case  is,  "that  when  a  British  subject  insures  against  captures,  the  law 
infers,  that  the  contract  contains  an  exception  of  captures  made  by  the  govern- 
ment of  his  own  country ;  and  if  he  had  expressly  insured  against  British 
capture,  such  a  contract  would  be  abrogated  by  the  law  of  England. " 

(/))   1  Salk.  198.  (c)  Quaest.  Juris  Pub.  lib.  1,  c.  21. 

(/)  Page  33. 


362  OF    ILLEGAL    VOYAGES. 

So  also  in  the  case  of  Ke/lner  v.  Le  Mesurier,  (e)  Lord  Elhnhoroui^h  says, 
"As  to  the  last  around  of  ohjection  to  tlie  validity  of  this  insurance,  it  imme- 
diately involves  this  question,  viz  :  whedier  an  insurance  made  in  terms  against 
capture  g^enerally  can  be  legally  carried  into  elfect,  so  as  to  operate  as  an  indem- 
nity against  an  act  of  hostile  capture  on  the  part  of  his  Majesty  and  his  su!)jects, 
in  favour  of  an  enemy,  (for  such  the  proprietor  of  this  ship  must  be  taken  to 
be  at  the  time  of  the  capture  in  question,)  the  ship  having  been,  as  alleged, 
taken  as  prize  by  his  Majesty.  And,  upon  full  consideration  on  the  subject, 
we  are  of  opinion  tliat  this  last  ground  of  objection  is  well  founded,  and  that 
no  action  can  be  maintained  upon  this  policy  to  recover  the  loss  in  question. 
A  policy  containing  an  insurance  against  British  capture  co  nomine  would  be 
illegal,  and  void  upon  the  face  of  it,  as  being  directly  and  obviously  repugnant 
to  the  interest  of  tlie  state,  having  an  immediate  tendency  to  render  ineffectual 
to  the  extent  of  the  indemnity  created  thereby  all  offensive  operations  by  sea, 
adopted  by  his  Majesty  and  his  subjects,  for  the  purpose  of  weakening  the 
strength  and  diminishing  the  resources  of  the  enemy.  And  if  an  insurance  by 
a  British  subject,  made  in  terms,  against  British  capture  would  be  void,  an 
insurance  indirectly  producing  the  same  elTect  by  tlie  application  afterwards  of 
the  general  words  of  the  insurance  to  the  particular  event  of  British  capture, 
which  has  since  happened,  must,  we  are  of  opinion,  upon  principle  be  equally, 
illegal;  and  that  no  peril,  the  subject  of  insurance,  can  be  covered  under  the 
r  *prQ  "1  generality  of  the  terms  *"capture,"  "detention  of  princes,"  or 
L  J  the  like,  which  could  not,  consistently  with  law,  be  specifically 

insured  in  direct  and  express  terms." 

In  the  next  case  of  Gamba  v.  31esurier,  (a)  on  the  same  day.  Lord  Ellen- 
borough  also  delivered  the  judgment :  the  principle  of  the  case  is  similar  to 
the  preceding  one,  viz  : — "that  an  underwriter  on  French  property  in  time  of 
war,  was  not  liable  for  loss  occasioned  l)y  capture  by  the  king's  ships  during 
hostilities,  which  commenced  between  Great  Britain  and  France  subsequent 
to  the  policy  being  made,  and  terminated  before  action  brought." 

And  on  the  same  day  judgment  was  delivered  by  the  learned  Chief  Justice, 
m  the  case  of  Brandon  v.  Curling,  (b)  in  which  case  it  was  held  by  the  Court, 
"that  an  insurance  on  goods  from  London  to  Bayonne  in  France,  shipped  on 
board  a  neutral  ship,  on  account  of  and  at  the  risk  of  Frenchmen,  before  the 
declaration  of  hostilities  between  Great  Britain  and  France,  but  exported 
afterwards,  could  not  be  enforced  against  the  underwriter,  even  after  the  resto- 
ration of  peace,  to  recover  a  loss  by  capture  of  a  co-belligerent  (not  stated  to 
be  an  ally)  during  the  war.  And  they  held,  that  every  insurance  on  alien  pro- 
perty by  a  British  subject,  must  be  understood  with  this  implied  exception, 
that  it  shall  never  cover  any  loss  happening  during  the  existence  of  hostilities 
between  the  respective  countries  of  the  assured  and  assurer." 

And  not  long  after  these  cases,  the  case  of  Lubbock  and  another  v.  Potts,  (c) 
came  before  the  Court  of  King's  Bench ;  and  the  judgment  was  delivered  by 
Lord  Chief  Justice  Ellenborough:  and  the  Court  held  in  this  case  that,  "colo- 
nial produce  could  not  legally  be  shipped  from  the  British  West  Lidies  for 
Gibraltar,  and  therefore  the  same  could  not  be  insured  on  such  a  voyage." 
This  case  is  mentioned  for  the  sake  of  the  principle  contained  it  it,  viz : — that 
r  *fifin  ~1  ^*  ^  certain  voyage  be  prohibited  by  the  laws  of  this  country,  the 
L  J  ^insurance  upon  the  adventure  is  illegal  also,  and  therefore  void. 

But  this  class  of  cases  which  depended  upon  the  old  navigation  laws,  and  the 
laws  relating  to  the  customs  so  entirely  as  to  render  such  cases  scarcely  worth 


(e)  4  East,  396,  («)  4  East,  407. 

(/;)  4  East,  409.  (c)  7  East,  449. 


OF    ILLEGAL    VOYAGES.  363 

referrino^  to,  after  the  entire  alteration  of  the  former,   and  annihilation  of  the 
latter  at  this  clay.  («) 

There  are,  however,  some  matters  still  to  be  mentioned  on  this  head :  such 
are  the  laws  against  smuggling. 

By  3  &  4  Wm.  4,  c.  53,  all  the  laws  upon  this  suhjcct  are  consolidated  in 
that  act :  by  whicli  it  is  enacted,  that  every  person  who  liy  way  of  insurance 
or  otherwise,  shall  undertake  or  agree  to  deliver  any  goods  to  be  imported 
beyond  the  seas  into  any  port  or  place  in  the  United  Kingdo7n,  without  pay- 
ing the  duties  due  on  such  importation,  or  any  prohibited  goods ;  or  who,  in 
pursuance  of  such  insurance  or  otherwise,  shall  deliver  or  cause  to  be  delivered, 
any  uncustomed  or  prohibited  goods,  and  every  aider  and  abettor  of  such  person, 
shall  for  every  such  oflence,  forfeit  the  sum  of  500/.  over  and  above  any  other 
penalty  to  which  he  may  be  liable ;  and  every  person  who  shall  agree  to  pay 
any  money  for  the  insurance  or  conveyance  of  such  goods,  or  who  shall  receive 
or  take  such  goods  into  his  custody  or  possession,  or  sulTer  the  same  to  be  so 
received  or  taken,  shall  also  forfeit  500/.  over  and  above  any  penalty  to  which 
he  may  by  law  be  liable.  (6) 

It  would  seem  that  if  part  of  a  cargo  be  illegal,  and  the  rest  of  the  goods, 
though  legal,  are  intended  to  cover  an  illegal  design,  (c)  or  if  the  contract  be 
entire,  and  cannot  be  severed,  the  illegality  of  the  part  will  vitiate  the  whole 
policy.  But  if  a  portion  of  the  subject-matter  be  entirely  free  from  the  ille- 
gality, and  there  be  no  fraud  extending  to  it,  the  policy  is  divisible,  and  will 
protect  tlie  legal  part  of  the  *cargo ;  and  therefore  it  was  held  that  r-  j^„„,  -. 
a  cargo  licensed  might  be  insured,  and  the  insurance  of  part  is  not  •-  -■ 

vitiated,  though  the  other  part  of  the  cargo  is  not  licensed  and  illegal,  (a) 

And  where  a  license  was  granted  to  export  gunpowder,  and  more  was  ex- 
ported than  was  specified  in  the  license,  the  exportation  of  the  excess  only  was 
held  to  be  illegal;  and  therefore  an  insurance  on  the  whole  cargo  was  supported 
as  to  so  much  for  which  the  license  was  obtained,  (b) 

But,  in  the  case  of  Parkin  v.  Bick^  (c)  where  an  exportation  from  this  coun- 
try was  protected  by  a  valued  policy  on  goods  to  be  thereafter  specified,  and  the 
specification  afterwards  made  included  some  goods,  the  exportation  of  which 
was  prohibited  under  the  penalty  of  forfeiting  the  goods  and  the  ship  in  which 
they  were  exported,  the  Court  of  King's  Bench  held  the  whole  adventure  to  be 
illegal  and  the  policy  entirely  void.  Lord  Ellenboroni^h  observing  "it  is  an 
illegal  act  and  subjects  the  ship  itself  to  forfeiture.  'I'he  policy  is  one  entire 
contract  on  goods  to  be  thereafter  specified,  to  which  the  underwriter  subscribed  : 
and  the  subsequent  specification  by  the  assured  cannot  alter  the  nature  of  the 
contract  with  respect  to  the  underwriters  so  as  to  sever  that  which  was  one 
entire  contract.  It  has  been  decided  a  hundred  times  that  if  a  party  insure 
goods  altogethei  in  one  policy,  and  some  of  them  are  of  a  nature  to  make  the 
voyage  illegal,  the  whole  contract  is  illegal  and  void." 

And  in  the  case  of  Camelo  v.  Britten,  [d)  where  the  license  was  held  void 
on  account  of  the  condition  not  having  been  complied  with,  although  the  sub- 
ject-matter of  tlie  insurance  consisted  of  various  articles  besides  the  gunpowder, 
still  it  was  considered  that  the  policy  being  one  entire  contract,  it  was  wholly 
void. 

(a)  See  the  Navigation  Act  of  3  &  4  Wm.  4,  c.  54.     And  see  the  act,  5  &  6  Vict.  c. 
47,  (altered  and  amended  by  8  Vict.  c.  12,)  passed  8th  May,  1845. 
(h)  Sect.  47.     See  also  4  &  5  Wm.  4,  c.  13;  4  &  5  Wm.  4,  c.  189. 

(c)  See  Gordon  v.  Vaushan,  12  East,  302.     Ante,  p.  647. 

(a)  Picscall  v.  AUnutt,  4  Taunt.  792.     Butler  v.  Allnutt,  I  Stark.  222. 

(b)  Keir  v.  Audrade,  2  Mar.sh.  196.  (c)   11  East,  502. 

(d)  4  B.  &  A.  184.     Ante,  p.  647. 


364  OF    NON-COMPLIANCE    WITH    WARRANTIES. 

A  sentence  against  a  neutral  by  a  Brithh  Vice  Admiralty  Court,  is  sufficient 
evidence  from  which  to  presume  that  the  ship  had  been  engaged  in  some  illegal 
r  *fifi9  1  transaction.  A  neutral  -meeting  by  agreement  a  Britiah  vessel, 
L  '"""''^  J  for  the  purpose  of  receiving  gunpowder  and  arms,  is  illegal,  even 
though  the  latter  should  have  had  a  license  to  export  them  for  the  purposes  of 
trade,  (o) 


SECTION  III. 

OF    NON-COMPLIANCE    WITH    WARRANTIES. 

We  come  now  to  notice  another  important  instance  in  which  the  assured 
may  forfeit  the  insurance  which  he  has  made  to  secure  himself  against  the  perils 
insured  against  by  the  underwriters,  and  this  is  where  he  makes  an  express 
condition  or  warranty  of  some  fact  or  circumstance,  or  binds  himself,  that  a 
certain  condition  shall  happen,  otherwise  he  is  to  lose  the  benefit  of  his  con- 
tract. This  condition  by  which  the  assured  binds  himself  that  it  shall  be 
performed,  is  independent  altogether  of  the  contract  which  I  endeavoured  in  the 
first  part  of  this  Treatise  to  explain  the  principles  of;  and  it  was  there  said, 
that  there  was  an  implied  condition  by  law,  that  the  assured  could  not  escape 
from,  viz :  that  his  ship  should  be  seaworthy  and  properly  equipped  for  the 
voyage ;  but  having  done  that,  he  makes  no  assurance  that  his  ship  is  safe  at 
the  moment  of  the  "insurance  :  (6)  he  is  bound  to  give  the  underwriter  all  the 
account  he  knows  of  her,  but,  as  Lord  Mansfield  says,  "that  although  the 
assured  ought  to  know  whether  the  ship  was  seaworthy  when  she  set  out  on 
her  voyage,  yet  he  may  not  be  able  to  know  the  condition  she  may  be  in,  after 
she  has  been  out  a  twelve-month."  There  is  also  an  implied  condition  by 
law,  that  the  loss  shall  not  happen  through  the  foult  of  the  assured ;  if  his  con- 

^  1  "^'"^^  ^^  ^"^^^  ^^  ^^  cause  either  a  forfeiture  of  the  ship  to  *a  foreign 

L  "°3  J  state,  or  to  occasion  the  loss  of  it  by  his  own  act,  the  underwriter 
is  not  liable.  But  it  is  a  very  different  thing  where  he  chooses  to  bind  himself 
to  a  condition  or  warranty,  that  something  is  the  fact,  as  he  represents,  or  that 
something  is  to  be  done  by  him.  By  the  law  of  England,  such  a  condition 
must  be  complied  with,  or  it  works  the  entire  failure  of  the  contract.  Lord 
Eldon,  in  the  case  of  the  Newcastle  Fire  Insurance  Company  v.  Macmor- 
roiv,  {a)  says  : — "It  is  a  clear  and  first  principle  of  the  law  of  insurance,  that 
where  a  thing  is  warranted  to  be  of  a  particular  nature,  or  description,  it  must 
be  such  as  it  is  stated  to  be.  It  is  no  matter  whether  it  be  material  or  not;  the 
only  question  is.  'is  this  the  thing  de facto  that  I  have  signed.'  " 

And  therefore  it  has  been  held  in  the  case  o[ Harrison  v.  Douglass,  (b)  that 
an  underwriter  m  an  action  on  a  policy,  after  paying  money  into  Court,  cannot 
rely  on  a  breach  of  warranty ;  for  the  payment  admits  that  the  assured  has  a 
rio-ht  to  recover  something,  which  he  could  not  do  if  there  had  been  a  breach 
of  warranty. 

So  in  the  case  of  Blackhurst  v.  Cockell,  (c)  which  was  an  action  on  a  policy 
of  insurance  "on  o-oods,"  from  the  lading  of  them  on  board  the  ship  at  London 


(ft)  Gibson  v.  Mair,  1  Marsh.  39,  and  Gibson  v.  Service,  1  Marsh.  119. 
(/i)  Sec  Mottcux  V.  London  Assurance  Comp.  ante,  p.  200. 
(ft)  3  Dow.  255.  (l>)  3  A.  &  E.  306. 

(c)  3  T.  R.  360. 


OF    NON-COMPLIANCE    WITH    WARRANTIES.  365 

to  Liverpool,''''  "lost  or  not  lost:"  at  the  bottom  of  the  policy  was  added 
"warranted  well,  December,  9th,  1784."  At  the  trial  before  Lord  Kenyan, 
at  Guildhall,  it  appeared  that  the  underwriter  underwrote  die  policy  between 
one  and  three  in  the  afternoon,  and  that  tlie  ship  was  lost  about  eii.dit  o'clock 
that  morning-.  A  nonsuit  was  entered,  with  liberty  to  the  plaintiff  to  move  to 
enter  the  verdict  for  him:  hoxd  Kenyan,  "The  single  question  is,  whether 
the  warranty  at  the  bottom  of  die  policy  means  at  the  time  when  the  defendant 
subscribed  it,  or  any  time  that  day.?  And  we  are  all  of  opinion,  that  if  the 
ship  be  well  at  any  time  that  day  it  is  sufficient." 

Buller,  J. — "The  nature  of  a  warranty  jjoes  a  great  Avay  to  determine  this 
question.  It  is  a  matter  of  indiflcrence  "  wliether  the  thing  war-  ^  ^^_ 
ranted  be  material  or  not :  but  it  must  be  literally  complied  with  ;  L  ""'*  J 
and  if  it  be  so,  that  is  sufficient.  Here  the  ship  was  warranted  safe  on  the  9th 
of  December,  and  there  was  great  reason  for  inserting  those  words,  because 
they  protected  the  underwriter  from  all  losses  before  that  day:  to  which  he 
would  have  been  liable,  for  the  policy  was  on  the  goods  from  the  lading  on 
board  of  the  ship." 

2.  In  Pawson  v.  TVatson,  (a)  Lord  Mansfield  said. — "There  is  no  distinc- 
tion better  known  to  those  who  are  at  all  conversant  with  the  law  of  insurance 
than  that  which  exists  between  a  warranty,  or  condition  which  makes  part  of 
a  written  policy,  and  a  representation  of  the  state  of  the  case.  Where  it  is  a 
part  of  a  written  instrument  it  must  be  performed." 

And  in  the  same  case,  in  answer  to  a  question  put  by  the  counsel  for  the 
underwriters,  viz  :  wheUier  it  was  the  opinion  of  the  Court  that  to  make  written 
instructions  valid  and  binding  as  a  warranty,  they  must  be  inserted  in  the  policy? 
Lord  Mansfield  answered  that,  "most  undoubtedly  that  was  the  opinion  of  the 
Court."  And  in  the  case  of  Lothian  v.  Henderson  in  the  House  of  Lords,  {b) 
Mr.  J.  Chambre,  says  [c)  "At  the  time  when  the  agi-eement  was  made,  the 
underwriters  had  by  the  terms  of  the  policy  a  clear  right  to  all  the  advantages 
of  a  warranty  that  the  ship  was  American,  it  having  been  long  settled  that 
such  a  description  as  is  contained  in  this  policy  does  amount  to  a  warranty." 
The  description  in  the  policy  was  "upon  the  goods  and  merchandises  of  and 
in  the  good  ship  called  the  Catharine,  an  American  vessel."  And  Mr.  J.  Le 
Blanc,  says,  "it  has  scarcely  been  denied  at  the  Bar  that  tlie  terms,  of  this 
policy,  'of  and  in  the  good  ship  or  vessel  called  tlie  Catharine,  an  American 
vessel,'  amount  to  an  express  warranty  of  the  ship's  he\\\g  American,  which 
was  a  neutral  nation,  in  the  war,  nor  could  it  have  been  otherwise  contended 
for,  after  the  uniform  ^current  of  authorities  in  which  such  an  p  ^ft/.- 
averment  has  been  decided,  or  taken  for  granted  to  be  a  warranty,  L  J 

as  much  as  if  the  word  '  warranted'  had  been  inserted  in  the  policy,  for  I  take 
this  to  be  an  established  proposition  that  every  positive  averment  or  allegation 
on  the  face  of  the  instrument,  and  making  a  part  of  the  written  contract, 
whether  inserted  in  the  body  of  it.  or  written  in  the  margin  in  a  line  with  the 
body  of  the  instrument,  or  transversely,  amounts  to  a  warranty  or  condition. 
And  if  such  allegation  be  not  strictly  true  die  assured  cannot  recover  on  the 
policy  to  whatever  cause  the  loss  be  owing,  whether  the  loss  be  connected  with 
the  subject  of  such  warranty,  or  wholly  independent  of  it :  for  it  is  a  condition 
on  which  the  contract  is  to  take  effect,  which  failing,  the  contract  fads." 

And  this  rule  of  law  was  decided  in  the  case  of  Bean  v.  Stnpart,  (a)  where 
the  plaintiff  insured  the  ship  called  the  Martha  "at  and  from  London  to  Neiv 
York,^^  and  on  the  margin  of  the  policy  were  written  these  words  "eighty 


(ff)  Cowp.  787.     See  ante,  p.  602,  where  this  case  is  fully  reported. 
(6)  3  B.  &  P.  499.  (c)  Page  510. 

(a)  Doug.  11. 


366  OF    NON-COMPLIANCE    WITH    WARRANTIES. 

nine-povmders  with  close  quarters,  six-ponnders  on  her  upper  decks,  thirty- 
seamen  besides  passengers."  The  ship  sailed  from  the  Downs  on  the  1st 
March  and  on  tlie  10th  was  taken  by  an  Jlinerican  privateer  and  was  sent  to 
make  the  port  o(  Boston.  On  the  30th  May,  the  plaintitl'  brought  this  action 
against  the  defendant,  on  which  the  defendant  paid  the  premium  into  Court, 
and  pleaded  the  general  issue.  The  cause  was  tried  liefore  LoVd  Mansfield^ 
and  a  special  jury  at  GuildhalU  at  the  Sittings  after  Trinity  Term,  18  Geo. 
3  ;  the  defence  set  up  was,  that  there  were  not  thirty  seamen  on  board  the  ship 
according  to  the  stipulation  in  the  margin  of  the  policy  :  and,  in  fact,  it  appeared 
from  the  evidence  that  to  make  up  that  number  the  plaintiff  reckoned  the  stew- 
ard, cook,  surgeon,  some  boys  and  apprentices,  and  some  persons  learning  to 
be  seamen ;  and  only  twenty-six  persons  had  signed  the  ship's  articles.  It 
also  appeared  that  there  were  seven  or  eight  passengers  on  board. 

1  *I^ord  Mansfield  observed,  in  summing  up  to  the  jury,  that  the 
L  """  J  import  of  the  words  must  be  collected  from  the  subject  to  which 
they  are  applied.  That  if,  in  the  present  case,  the  assured  had  stipulated  for 
thirty  seamen  besides  boys  and  landsmen,  it  would  have  been  clear  that  the 
terms  had  not  been  complied  with;  but  that  in  this  policy  seamen  were  con- 
trasted with  passengers,  and,  in  that  sense,  the  words  seemed  to  include  boys 
as  well  as  men:  but  he  left  the  construction  to  the  jury.  The  jury  found  a 
verdict  for  the  plaintiff  as  for  a  total  loss  ;  the  defendant  obtained  a  rule  to  shew 
cause  wliy  there  should  not  be  a  new  trial.  On  the  day  for  shewing  cause, 
Lord  Mansfield,  after  reporting  the  facts  as  above  stated,  and  that  he  had  left 
the  construction  of  the  word  "seamen,"  to  the  jury,  observed,  that  he  thought 
there  was  little  doubt  on  the  question  after  what  had  passed  in  the  case  of 
Paioson  v.  Ewer.  That  the  warranty  might  have  been  so  worded  as  only  to 
include  able  seamen ;  but  that,  as  expresseel  here,  the  contrast  being  with  pas- 
sengers, the  whole  of  the  ship's  crew  or  ship's  company  appeared  to  be  meant. 
That  was  the  general  maritime  sense  of  the  word.  After  argument  at  the  Bar  : 
Lord  Mansfield — "The  whole  argument  for  the  defendant  turns  upon  begging 
the  question.  There  is  no  doubt,  but  that  this  is  a  warranty.  Its  being  written 
on  the  margin  makes  no  difference.  Being  a  warranty  there  is  no  doubt  but 
the  underwriter  would  not  be  liable,  if  it  were  not  complied  with :  because  it 
is  a  condition  on  which  the  contract  is  founded.  But  the  question  is,  whether 
in  this  warranty  the  -word  "seamen"  was  used  in  the  strict  literal  sense  or  not. 
If  it  was,  the  warranty  has  not  been  complied  with.  It  is  a  matter  of  construc- 
tion. Boys  are  reckoned  seamen,  not  only  at  the  Custom-house,  and  Green- 
wich hospital,  but  in  the  distribution  of  prizes.  The  special  jury  and  bye- 
standers  were  perfecdy  clear,  they  hardly  seemed  to  think  it  a  serious  question 
in  this  cause.  There  is  scarcely  now  such  a  thing  as  a  ship  entirely  manned 
with  seamen  strictly  so  called.  Even  on  board  the  king's  ships  they  are  satis- 
P  ^(^pm  -]  fied  with  a  few  strict  seamen,  and  able-bodied  *landsmen  make  up 
L  J  the  rest  of  the  crew.     I  had  no  doubt  of  the  sense  of  the  word  in 

this  policy,  and  the  jury  decided  it." 

In  an  action  tried  before  Lord  Mansfield.,  of  Pau'son  v.  Barnevelf.  at  Gidld- 
hctll,  {a)  the  counsel  for  the  defendant  ofTered  to  produce  witnesses  to  prove 
that  a  written  memorandum  inclosed  in  the  policy  was  always  considered  as 
part,  but  Lord  Mansfield  said  tliat  it  was  a  mere  question  of  law,  and  would 
not  hear  the  evidence ;  but  decided  that  a  written  document  did  not  become  a 
strict  warranty  by  being  folded  up  in  the  policy.  And  see  the  case  of  Bize  v. 
Fletcher,  at  Guildhall,  Easter  Vac.  1779.  {h)     But  if  a  policy  refer  to  certain 


(ff)  Trin.  Vac.  1779,  Doug.  12,  in  the  notes. 
\b)  Doug.  12,  in  the  notes,  ante,  p.  608. 


OF    NON-COMPLIANCE    WITH    WARRANTIES.  367 

printed  proposals  the  proposals  will  be  considered  as  part  of  the  policy,  Wors- 
ley  V.  JJ^ood  in  error,  (c)     See  also  Ruthdge  v.  Burrell.  (t/) 

And  in  the  case  of  Graham  v.  Barras,  (e)  where  a  ship  was  warranted  not 
to  sail  "forei<Tn"  after  the  times  limited  by  certain  club  rules;  the  rules  or 
warranties  of  the  club  limited  the  times  of  sailing  to  different  parts  of  the  world, 
and  by  one  of  the  rules  it  was  provided  that  vessels  might  sail  after  the  limited 
times,  on  payment  of  an  additional  premium,  as  per  scale;  and  by  another  rule 
every  member  of  the  club,  before  the  commencement  of  each  voyage,  was  to 
give  his  acceptance  for  the  premium,  and  parties  neglecting  to  give  notice  were 
subject  to  a  penalty :  it  was  held  (assuming  that  these  rules  could  be  incor- 
porated with  the  policy)  that  a  party  whose  ship  had  sailed  too  late,  and  been 
lost,  could  not  afterwards  obtain  the  benefit  of  the  extended  time,  by  submitting 
to  the  penally,  and  paying  the  extra  premium. 

In  the  case  of  Kenyon  v.  Berthon,  (/)  the  following  words  were  written  on 
the  margin  of  tlie  policy  : — "In  port  20th  of  July,  1776."  In  fact,  the  ship 
had  sailed  on  the  18th  of  July.  The  question  was,  whether  this  marginal 
note  was  a  Avarranty  or  a  representation.'' 

*Lord  Mansfield. — "The  question  is,  whether  the  ship's  being  ^  ^„_„  -, 
in  port  on  the  20th  is  part  of  the  condition  of  the  instrument?  •-  J 

AVhen  it  is  on  the  face  of  the  instrument,  it  is  a  part  of  the  policy :  so  that 
here,  if  the  ship  was  not  in  port,  it  is  no  contract.  As  to  its  being  only  in  the 
margin,  that  makes  no  difference :  it  is  all  part  of  the  contract,  when  it  is  once 
signed.  And  though  the  difference  of  two  days  may  not  make  any  material 
difference  in  the  risk,  yet  as  the  condition  has  not  been  complied  with,  the 
underwriter  is  not  liable." 

3.  The  propriety  of  these  decisions  has  never  been  questioned,  and  the  rule 
has  been  constantly  and  tacitly  acquiesced  in  from  the  time  in  which  these 
cases  were  determined  till  the  year  1786,  when,  notwithstanding  the  uniformity 
of  the  determinations  upon  the  subject,  it  once  more  became  an  object  of  dis- 
cussion in  the  case  of  De  Hahn  v.  Hartley.  («) 

It  came  before  the  Court  upon  a  special  verdict;  it  was  an  action  of  assump- 
sit brought  by  the  plaintill"  (an  underwriter)  against  the  defendant,  to  recover 
back  the  amount  of  a  loss  which  he  had  paid  upon  a  policy  of  insurance.  The 
defendant  pleaded  the  general  issue.  The  cause  came  on  to  be  tried  before  Mr. 
Justice  Buller  at  Guildhall,  when  the  jury  found  a  special  verdict,  stating: 

That  the  defendant,  on  the  14th  oi  June,  1779,  gave  to  his  insurance  broker 
instructions  in  writing,  to  cause  an  insurance  to  be  made  on  a  certain  vessel, 
called  the  Jimo.  (Then  the  instructions  are  set  out  in  the  verdict,  signed  by 
the  defendant.)  The  verdict  then  states,  that  the  broker,  in  consequence  of 
such  instructions,  on  the  said  14th  of  June,  1779,  did  cause  a  policy  of  insu- 
rance to  be  made  on  the  Juno,  upon  goods  and  merchandises  laden  on  board, 
and  also  on  the  ship,  at  and  from  Africa,  to  her  port  or  ports  of  discharge  in 
the  British  TVest  Indies,  at  and  after  the  rate  of  15/.  per  cent.  The  verdict, 
after  reciting  two  memorandums,  not  material,  then  proceeded  to  state,  that  in 
the  margin  of  the  said  policy  *were  written  the  words  and  figures  j-  ^ 
following: — "Sailed  from /iuer/joo/  witii  fourteen  six-pounders,  L  -I 

swivels,  small-arms,  and  fifty  hands  or  upwards  :  copper  sheathed."  That  the 
plaintiff  underwrote  the  policy  for  200/.  at  a  premium  of  31/.  10s.  That  the 
Juno  sailed  Irom  lAverpool  on  the  13th  of  October,  1778,  having  then  only 


(c)  6  T.  R.  710.  (rf)    1  H.  Black.  254. 

(e)  5B.  &  Ad    1011. 

(/)  Mich.  Vac.  1779;  Doug.  12,  note  (4),  and  see  Colby  v.  Hunter,  Moo.  &  M.  81, 

(a)    1  T.  R.  343. 

Vol.  VII.— Z 


368  OF    NON-COMPLIANCE    WITH    WAURANTIES. 

foriy-six  hands  on  board  her,  and  arrived  at  Beaumaris,  in  the  Isle  of  Mglc- 
sea,  in  six  hours  after  her  sailing  from  Liverpool,  with  tlie  pilot  from  Liver- 
pool on  board  her,  who  did  pilot  her  to  Beaumari.s,  on  her  said  voyage ;  and 
that  at  Beaumaris  the  Juno  took  in  six  hands  more,  and  then  had,  and  during 
the  said  voyage,  until  the  capture  thereof,  continued  to  have  fifty- two  hands 
on  board  her.  That  the  said  ship  in  the  voyage  from  Liverpool  to  Beau- 
maris, until  and  when  she  took  in  the  said  six  additional  hands,  was  equally 
safe,  as  if  she  had  had  fifty  hands  on  board  her  for  that  part  of  the  voyage. 
The  verdict  then  states,  that  the  defendant  was  interested,  and  that  the  ship  was 
captured  ;  that  on  receiving  an  account  of  the  loss  of  the  vessel,  the  plaintiff 
paid  to  the  defendant  the  sum  of  200/.,  not  having  then  had  any  notice  that  the 
said  ship  had  only  forty -six  hands  on  board  her  when  she  sailed  from  JJver- 

For  the  defendant  it  was  said,  that  this  representation  had  no  relation  to  the 
voyage  insured,  for  that  was  at  and  from  .Africa,  &c.,  whereas  this  is  merely 
an  ae'count  of  the  state  of  the  ship  at  Liverpool. 

Lord  Mansfield. — "There  is  a  material  distinction  between  a  warranty  and 
a  representation.  A  representation  may  be  equitably  and  substantially  answered ; 
but  a  warranty  must  be  strictly  complied  with.  Supposing  a  warranty  to  sail 
on  the  \sioi  August,  and  the  ship  did  not  sail  till  the  2nd,  the  warranty  would 
not  be  complied  with.  A  warranty  in  a  policy  of  insurance,  is  a  condition  or 
a  contingency,  and  unless  that  is  performed  there  is  no  contract.  It  is  perfectly 
immaterial,  for  what  purpose  a  warranty  is  introduced ;  but  being  inserted,  the 
contract  does  not  exist  unless  it  is  literally  complied  with.  Now  in  the  present 
case,  the  condition  was,  *the  sailing  of  the  ship  with  a  certain 
L      °^       -J  number  of  men,  which  not  being  complied  with,  the  policy  is  of 

no  effect." 

Mr.  Justice  Buller. — "It  is  impossible  to  divide  the  words  written  in  the 
margin,  in  the  manner  which  has  been  attempted  at  the  Bar,  that  that  part  which 
relafes  to  the  copper  sheathing  should  be  a  warranty,  and  not  the  remaining 
part.  But  the  whole  forms  one  entire  contract,  and  must  be  complied  with 
throughout."  Judgment  for  the  plaintiff.  A  writ  of  error  was  brought  in  the 
Exchequer-chamber  upon  this  judgment,  which,  after  two  arguments,  was 
affirmed  by  the  unanimous  opinion  of  the  eight  Judges  composing  that  Court,  (o) 

Having  stated  those  rules  Avhich  apply  to  warranties  in  general,  it  will  now 
be  proper  to  consider  the  several  kinds  of  warranties,  and  those  principles  which 
are  peculiar  to  each  species,  confirmed  by  decisions  of  the  Courts.  Those 
which  most  frequendy  occur  in  our  books  of  reports,  and  upon  which  the 
greatest  questions  have  arisen,  may  be  reduced  to  three  classes :  warranty  as  to 
the  time  of  sailing,  warranty  as  to  convoy,  and  warranty  of  neutrality.  Of 
each  of  these  we  shall  treat;  observing,  in  the  first  place,  that  those  rules  which 
are  applicable  to  warranty  in  general,  most  necessarUy  also  apply  to  each  of 
these  individually. 

I.   First,  as  to  the  time  of  sailing. 

1.  Thus  in  the  case  of  Hore  v.  Whitmore,  (b)  which  was  an  action  on  a 
policy  of  insurance,  upon  a  motion  to  set  aside  the  verdict  which  had  been 
o-iven  for  the  plaintiff,  the  case  appeared  to  be  this.  The  declaration  stated 
that  a  policy  was  made  on  the  ship  New  Westmoreland,  at  and  from  Jamaica 
to  London,  warranted  to  sail  on  or  before  the  26th  of  July,  1776,  free  from 
capture,  and  free  from  all  restraints  and  detainments  of  kings,  princes,  and 
people  of  what  nation,  condition,  or  quality  soever.     It  further  stated  that  the 


(fl)  Mich.  Term,  1787,  28  Geo.  3 ;  2  T.  R.  186. 
\b)  Cowp.  784. 


OF    NON-COMPLIANCE    AVITH    WARRANTIES.  369 

said  ship  was  prepared  and  ready  to  sail,  and  would  have  sailed  on  the  25t]i  of 
July,  on  her  intended  voyage,  if  she  had  not  *been  restrained  by  p    ^„ 
the  order  and  command  of  Sir  Basil  Keith,  the  then  governor  of  L  J 

Jamaica,  and  detained  beyond  the  day :  that  she  afterwards  sailed  and  was 
captured.  For  tlie  plaintiff  it  was  said,  that  the  usual  clause  against  the  deten- 
tion of  rulers  and  princes  being  inserted  in  this  policy,  the  embargo,  by  which 
the  ship  was  prevented  from  sailing  on  the  day  mentioned  in  the  warranty, 
came  expressly  within  the  meaning  of  it,  and,  therefore,  excused  the  delay. 

On  the  other  hand  it  was  said,  that  the  loss  of  the  ship  could  in  no  possible 
respect  be  connected  with  the  embargo.  That  the  warranty  was  positive  and 
express :  that  the  ship  should  depart  on  or  before  the  day  appointed,  and, 
therefore,  must  be  complied  with.  Of  this  opinion  was  the  Court;  and  accord- 
ingly the  rule  to  set  aside  the  verdict  for  the  plaintiff,  and  to  enter  a  nonsuit, 
was  made  absolute. 

2.  But  the  necessity  of  a  punctual  adherence  to  the  day  on  which  the  ship 
is  warranted  to  sail  by  the  policy,  is  not  peculiar  to  the  law  of  England:  for 
we  find  that  foreign  writers  declare,  that  the  same  rule  is  universally  adopted,  (a) 
If,  say  they,  the  owner  of  the  ship  or  goods  has  said  in  the  policy,  that  he  will 
be  ready  to  sail  at  a  particular  time,  at  which,  perhaps,  the  navigation  may  be 
less  dangerous  5  and  on  this  account  the  insurer  is  more  easily  induced  to  under- 
write the  policy ;  and  he  afterwards  delay  the  time  of  sailing,  and  the  ship  and 
goods  perish,  the  underwriter  is  not  bound,  for  he  who  neglects  to  depart  at  the 
appointed  time,  must,  if  he  sail  at  a  subsequent  period,  do  it  entirely  at  his 
own  risk,  (b) 

3.  If  the  warranty  be  to  sail  after  a  specific  day,  and  the  ship  sail  before, 
the  policy  is  equally  avoided  as  in  the  former  case  ;  because  the  terms  of  the 
warranty  are  as  much  departed  from  in  the  one  case  as  in  the  other. 

This  was  decided  in  the  case  of  Vezian  v.  Grant,  (c)  on  "^the  p  *a-in  ~\ 
8th  of  December,  Mil,  a  policy  was  underwritten  by  the  defend-  L  -^ 

ant  on  goods  in  a  French  ship,  Le  Compte  de  Trehon,  "at  and  from  Marfinico 
to  Havre  de  Grace,  with  liberty  to  touch  at  Guadaloupe ;  warranted  to  sail  after 
the  12th  o{  January,  and  on  or  before  the  ^x&ioi  Jlu gust,  1778."  The  insu- 
rance was  made  by  the  plaintiff  on  account  of  Jacques  Harteloupe  and  Louis 
de  Lamare,  of  Havre  de  Grace,  owners  of  the  ship  and  cargo  ;  at  which  time 
it  was  not  known  whether  she  would  load  at  Martinico  or  Guadaloupe,  they 
having  goods  to  come  from  both  places  ;  the  policy  was  therefore  intended  to 
cover  the  risk  from  both,  or  either  of  them.  The  ship,  having  finished  her 
outward  voyage  at  Martinico,  sailed  from  thence  on  the  6th  of  November, 
1777,  for  Guadcdoupe,  where  she  took  in  her  whole  loading,  without  returning 
to  Martinico,  which  the  captain  intended  to  do,  had  he  not  got  a  complete  cargo 
at  Guadaloupe ;  from  whence  she  sailed  on  the  26th  of  June,  1778,  and  was 
taken  on  the  3rd  of  September.  The  plaintiff  demanded  payment  of  the  loss 
from  the  underwriters,  which  being  refused,  he  brought  actions  against  them 
for  the  recovery  thereof.  This  cause  came  on  to  be  tried  at  Guildhall,  before 
Mr.  Justice  Buller,  when  the  defendant's  objections  were,  that  according  to 
the  words  of  the  policy,  the  voyage  was  to  commence  from  Martinico,  and  not 
from  Guadaloupe,  and  that  the  warranty  of  the  time  of  sailing  was  not  complied 
with,  the  ship  having  sailed  from  Martinico  before  the  12th  oi  January,  1778, 
to  wit,  on  the  6th  oi  November,  1777.     The  jury,  under  the  direction  of  the 

(a)  Roccus,  Not.  38. 

(6)  Roccus,  in  this  passage,  quotes  the  v^ork  of  Santerna,  upon  insurances,  who,  he 
observes,  "exclamat  contra  magistros  navium,  et  nautas  quando  detinentur  in  portu  a  muli- 
erculis,  vel  dulcedine  vini." 

(c)  Before  Mr.  J.  Buller,  Guild.  East.  Vac.  1779,     Park  Ins.  670. 


370  OF    NON-COMPLIANCE    WITH    WARHANTIES. 

learned  Judge,  were  of  that  opinion,  and  accordingly  found  a  verdict  for  the 
defendant. 

But  as  in  the  case  of  Bo7id  v.  Nutf,  («)  when  a  ship  is  warranted  to  sail  on 
or  before  a  particular  day,  if  she  sailed  from  her  port  of  loading,  witli  all  her 
cargo  and  clearances  on  board,  to  the  usual  place  of  rendezvous  at  another  part 
of  the  same  island,  merely  for  tlie  sake  of  joining  convoy,  it  is  a  compliance 
^A^Q  "1  ^^i^'i  ^'^^  warranty,  though  she  be  afterwards  ^detained  there  by  an 
L  '^"'*^  J  embargo  beyond  the  day.  The  ground  is,  that  when  a  ship  leaves 
her  port  of  loading,  when  she  has  a  full  and  complete  cargo  on  board,  and  has 
no  other  object  in  view  but  the  safest  mode  of  sailing  to  her  port  of  delivery, 
her  voyage  must  be  said  to  commence  from  her  departure  from  that  port,  {b) 
If,  indeed,  her  cargo  was  not  complete  it  would  not  liave  been  a  commencement 
of  the  voyage. 

This  was  an  action  on  a  policy  of  insurance  upon  the  ship  Capel,  in  the  Tf^est 
India  trade,  lost  or  not  lost,  at  and  from  Jamaica  to  London,  warranted  to 
have  sailed  on  or  before  the  first  of  August,  1776.  The  policy  was  cfl'ected 
on  the  20th  of  August,  1776,  at  a  premium  of  fifteen  guineas  per  cent,  to 
return  five  per  cent." if  the  ship  departed  with  convoy;  and  eight  per  cent,  if 
with  convoy  for  the  voyage,  and  arrived  safe.  At  the  trial,  there  was  no  con- 
troversy about  the  facts ;  and  they  are  shortly  these :  the  ship  was  completely 
laden  for  her  voyage  to  England,  at  St.  Anne's,  in  Jamaica,  and  sailed  from 
St.  Anne's  Bay,  on  the  26th  of  July  for  Bluejields,  in  order  to  join  the  con- 
voy there,  Bluejields  being  the  general  place  of  rendezvous  for  convoy  on  the 
Jamaica  station,  like  Spithead  in  England,  and  where  a  convoy  then  lay, 
which  was  expected  to  sail  for  England  every  day  :  but  the  greater  part  of  the 
way  from  St.  Anne's  to  Bluejields  is  out  of  the  direct  course  of  the  voyage 
from  St.  Anne's  to  England.  That  she  arrived  oflf  Bluejields  on  the  28th  or 
29th  of  July,  where  she  was  immediately  stopped  by  an  embargo  laid  on  all 
vessels  being  in  any  part  of  Jamaica,  and  was  detained  there  till  the  6th  of 
August,  when  she  sailed  with  the  convoy  for  England,  but  afterwards,  being 
separated  in  the  passage,  was  taken  by  an  American  privateer.  Upon  these 
facts  the  jury  found  a  verdict  for  the  defendant.  When  this  case  was  first^ 
argued  at  the  Bar,  two  points  were  relied  upon  for  the  defendant,  in  support  ol 
the  verdict,  which  the  jury  had  given  in  his  favour:  1st,  That  the  departure 
^  1  ^''^"^  '^'*  -'^'"^^'^  ^^^^  ^^^  ^  departure  from  Jamaica,  within  the 

L  '^"'■*  J  rneaning  of  *the  policy.  2ndly,  If  it  were,  that  tlie  going  to  Blue- 
jields was  a  deviation.  Upon  the  first  argument,  Lord  Mansfield  said  : — One 
point  now  started  is  entirely  new :  that  supposing  the  voyage  to  have  begun 
from  *SV.  Anne's  that  going  to  Bluefields,  (which,  it  is  admitted  on  all  hands, 
was  out  of  the  course  of  the  voyage,)  though  for  the  purpose  of  convoy  only, 
shall  be  considered  as  a  deviation.  In  answer,  it  has  been  said  by  the  counsel 
for  the  plaintiff,  that  tliere  are  cases  in  which  the  contrary  has  been  held :  but 
they  are  not  cited.  I  could  wish  therefore  that  these  cases  migbt  be  particu- 
larly looked  into,  and  this  ground  mentioned  again.  It  is  a  very  material  point : 
but  widely  different  from  a  warranty  to  depart  on  a  particular  day,  which  is  a 
condition  precedent  that  admits  of  no  latitude. 

The  second  point  was  again  argued  ;  and  then  the  Judges  severally  mentioned 
their  ideas  upon  the  subject,  without  coming  at  that  time  to  any  decision. 

Lord  Mansfield. — "I  am  extremely  glad  this  motion  has  been  made;  the 
cause  came  on  at  Guildhall,  by  the  candour  of  the  parties  in  the  fairest  manner. 
But  I  had  no  intimation  of  its  being  a  cause  of  consequence  till  after  the  verdict ; 


(a)  Cowp.  601. 

(b)  Cowp.  603;  and  Graham  v.  Barras,  5  B.  &  Ad.  1011. 


OF    NON-COMPLIANCE    WITH    WARRANTIES.  371 

when  I  was  informed  100,000/.  depended  upon  it.      The  question  was  fairly 
tried,  and  the  case  has  been  very  well  argued  on  both  sides.      I  have  thoualit 
much  of  it  since  the  trial.     Some  things  are  clear,  and  there  are  others  which 
require  consideration.      The  policy  was  made  on  the  20th  of  August,  1776, 
upon  the  contingency  of  a  fact,  which  must  have  existed  one  way  or  the  otlier 
at  the  time  the  policy  was  underwritten.     That  contingency  was,  that  the  ship 
should  have  sailed  on  or  before  the  1st  of  jiugicst;  consequentlv,  it  must  have 
taken  place  or  not  upon  the  20th  of  that  month.     The  port,  from  whence  the 
ship  was  to  be  insured,  was,  if  1  may  use  the  expression,  the  whole  island  of 
Jamaica:  but  from  which  of  the  ports  the  ship  would  sail,  neither  party  knew  : 
therefore  they  have  used  the  words,  'at  and  from  Jamaica:''  by  force  of  which 
she  certainly  was  protected  in  going  from  port  to  port,  and  till  she  sailed.     It 
follows,  that  *the  word  'sailed'  in  the  warranty;  must  mean  that  r-    ^^^, 
she  had  sailed  on  her  homeward-bound  voyage.      The  question  ^         '^     J 
then  is  a  matter  of  fact ;  and  one  that  admits  of  no  latitude,  no  equity  of  con- 
struction, or  excuse.      Had  she  or  had  she  not  sailed  on  or  before  that  day.^ 
That  is  the  question.     No  matter  what  cause  prevented  her ;  if  the  fact  is,  that 
she  had  not  sailed,  though  she  stayed  behind  for  the  best  reasons,  the  policy 
%yas  void  :  the  contingency  had  not  happened ;  and  the  party  interested  had  a 
right  to  say,  there  was  no  contract  between  them.     Therefore  what  was  said 
in  argument  is  very  true  :  if  she  had  been  prevented  by  any  accident  from  sail- 
ing till  the  2nd  of  August,  as  by  the  sudden  want  of  any  necessary  repair,  or 
if  an  enemy  had  been  at  the  mouth  of  the  port ;  the  captain  would  have  done 
very  right  not  to  sail,  but  there  would  have  been  an  end  of  the  policy.     It  is 
very  different  from  the  cases  where  a  voyage  has  been  be^un ;  there  the  usao-e 
of  the  voyage  may  justify  going  a  litUe  out  of  the  direct  cwirse.      This  also  is 
clear;  if  the  sliip  had  broken  ground,  and  been  fairly  under  sail  upon  her  voy- 
age for  England  on  the  1st  of  August,  though  she  had  gone  ever  so  little  way, 
and  had  afterwards  put  back  from  the  stress  of  weather,  or  apprehension  from 
an  enemy  in  sight,  or  had  then  been  put  under  an  embargo,  and  had  been 
detained  till  September,  it  would  still  have  been  a  beginning  to  sail;  and  the 
stoppage  would  have  come  too  late  ;  because  the  warranty  was  upon  a  fact  ante- 
cedent.     Such  a  case  happened  before  me  a  day  or  two  after  the  present  action 
was  tried,  (a)     It  was  an  insurance  upon  a  ship  from   Grenada  to  London, 
warranted  to  sail  on  or  before  the  1st  of  August.     She  had  barely  begun  to 
sail  on  the  day,  when  she  was  stopped  by  an  embargo,  and  detained  beyond 
the  time.      1  thought  the  voyage  was  begun ;  the  jury  were  of  that  opinion  :  and 
there  has  been  no  motion  for  a  new  trial.     I  am  giving  no  opinion,  only  break- 
ing the  case.      Here  the  whole  question  turns  upon  this :   Did  the  voyage  from 
Jamaica  homeward  begin  from  St.  Anne's,  or  -from  Bluefields?  ^    ^^   „     -, 
Perhaps  where  a  voyage  is  once  begun,  the  going  a  litUe  out  of  the  L    ""' "     J 
way  to  join  convoy  may  be  very  reasonable,  and  for  the  benefit  of  all  parties : 
but  still  it  does  not  vary  the  fact  of  sailing.      Here  it  was  very  reasonable  :  but 
the  question,  whether  the  voyage  began  from   St.  Anne's  or  Bluefields,  still 
remains.     Another  material  circumstance  arises  from  the  words,    'at  and  from 
Jamaica.''     At  the  trial  I  reasoned  thus  :    'By  the  terms  of  the  policy  she  was 
protected  during  her  stay  2.i  Jamaica:  by  force  of  them,  she  had  a  right  to  go 
to  any  port,  or  all  round  the  island;  and  she  went  to  Bluefields  for" reasons 
best  known  to  herself.     Therefore  the  voyage  began  from  Bluefields.''     Had 
the  insurance  been  at  and  from  the  port  oCSt.  Anne's,  it  did  strike  me  that 
going  round  the  island  to  Bluefields,  would  have  been  a  deviation.     But  this 
is  a  question  of  so  much  value  and  consequence,  that  the  Court  wishes  to  con- 
sider the  case  thoroughly,  before  they  give  a  final  decision  upon  it," 

(a)  Thellusson  v.  Fergusson,  at  Guild.  Hil.  Vac  1777. 


372  OF    NON-COMPLIANCE    WITH    WARRANTIES. 

The  Court  took  further  time  to  deliberate  j  and  then  their  unanimous  opinion 
was  pronounced  by 

Lord  Mansfield. — "We  are  all  satisfied  that  the  truth  of  the  case  is,  that  the 
voyage  from  Jamaica  to  England  began  from  St.  Anne's.  That  when  the 
ship  sailed  from  St.  Anne's,  she  had  no  view  or  object  whatsoever,  but  to  make 
the  best  of  her  way  to  England.  That  the  value  of  this  question,  admitted 
on  both  sides,  shews,  that  every  other  ship,  under  the  same  circumstances, 
looked  upon  the  touching  at  Bluefields.,  where  the  convoy  then  lay  ready,  to 
be  the  safest  course  of  navigation  from  Jamaica  to  England;  and  tliat  it  would 
have  been  unwise  and  imprudent  for  any  ship  not  to  have  touched  there.  The 
great  distinction  is  this :  that  she  sailed  from  .S7.  Anne's  for  England  by  way 
of  Bluefields;  and  that  it  was  not  a  voyage  from  St.  Anne's  to  Blucficlds  with 
any  object  or  view  distinct  from  the  voyage  to  England.  If  she  had  gone 
first  to  Bluefields  for  any  purpose  independent  of  her  voyage  to  England,  to 
have  taken  in  water,  or  letters,  or  to  have  waited  in  hopes  of  convoy  coming 
there,  none  being  ready,  that  would  have  given  it  the  condition  of  one  voyage 
r-  ^-.r.-^  -^  from  *St.  Anne's  to  Bluefields;  and  another  from  Bluefields  to 
L  ■"' '  J  England,  {a)  But  here,  under  all  the  circumstances,  we  think  she 
had  no  other  object  than  to  come  directly  to  England  by  the  safest  course." 
Therefore  the  rule  for  a  new  trial  was  made  absolute. 

A  few  years  afterwards  a  similar  decision  was  made,  (6)  and  the  only  differ- 
ence between  the  cases  was  this,  that  in  the  case  now  to  be  mentioned,  it  was 
a  condition  inserted  in  one  of  her  clearances,  that  she  should  pass  by  tlie  place 
(at  which  she  M'as  detained  by  the  governor  beyond  the  day  named  in  the  war- 
ranty) to  take  the  orders  of  government.  But  this  was  not  thought  sufficient 
to  induce  the  Court  to  depart  from  the  decision  in  Bond  and  Nutt ;  especially 
as  in  this  case,  the  place  where  the  ship  was  detained  was  in  the  direct  course 
of  the  voyage. 

It  was  an  action  on  a  policy  of  insurance  on  the  French  ship  L'Aimable 
Gertrude,  "at  and  from  Guadaloupe  to  Havre,  warranted  to  sail  on  or  before 
the  31st  of  December.'"  It  was  tried  before  Lord  Mansfield,  when  a  verdict 
was  found  for  the  plaintiff.  A  motion  having  been  made  for  a  new  trial,  the 
case,  from  his  Lordship's  report,  appeared  to  be  as  follows : — The  ship  took 
in  her  complete  lading  and  provisions  for  France,  and  all  her  clearances  and 
papers,  at  a  port  called  Pointe  a  Pitre,  in  the  island  of  Giiadaloupe,  and  sailed 
from  thence  on  the  24th  of  October,  for  Basseterre,  where  there  is  no  port, 
but  only  an  open  road.  The  town  of  Basseterre  is  the  residence  of  the  French 
governor.  The  ship  arrived  there  at  night,  when  the  captain  went  on  shore, 
and  next  day  waited  on  the  governor,  who  would  not  permit  him  to  depart, 
and,  to  prevent  it,  took  his  ship's  papers  from  him.  At  this  place  he  was 
detained  with  his  ship  till  the  10th  of  January,  when  he  set  sail  with  a  con- 
voy, which  had  arrived  some  little  time  before,  and,  being  separated  after  some 
days  from  the  convoy,  the  ship  was  taken  by  an  English  vessel.  The  captain, 
^  1  ^^^^^  ^^^^  ^^^^  ^^^^y  witness  produced  at  the  trial,  *swore  that  notice 

L  J  had  been  given  on  the  part  of  the  governor,  some  days  before  he 

sailed,  to  him  and  the  other  captains  of  ships  at  Pointe  a  Pitre,  who  were 
preparing  to  sail  for  Europe,  that  a  convoy  was  expected  to  be  at  Basseterre, 
from  Martinico,  on  the  25th  of  October,  and  that,  in  consequence  of  this  inti- 
mation, he  had  worked  night  and  day  to  get  ready,  and  had  paid  extraordinary 
gratifications  to  obtain  the  ship's  papers  and  clearances  as  soon  as  possible? 
that  the  desire  of  being  in  time  for  the  convoy  was  the  only  reason  for  this 
haste ;  and  that,  although  he  was  not  able  to  sail  till  the  24th,  he  was  still  in 


(a)  Wright  V.  ShifTncr,  11  East,  515;  2  Camp.  247. 
(/;)  Theliusson  v.  Fcrgusson,  Doug.  361. 


OF    NON-COMPLIANCE    WITH    WARRANTIES.  373 

• 

hopes  of  being  in  time  for  the  convoy,  as  he  thought  it  might  very  probably 
have  been  detained  at  Martinico  some  days  beyond  its  time.  The  last  ship 
papers  which  he  received  at  Pointe  a  Pitre  was  Le  Role  cV Equipage,  or  the 
muster-roll.  Tliis  paper,  which  was  much  relied  upon  by  the  counsel  for  the 
defendant,  was  dated  the  24th  of  October,  and  was  in  the  following  words : — 
**  Vu  par  nous,  charge  du  detail  des  classes  an  department  de  la  Grande 
terre  Guadaloupe,  V equippage  denomme  au  rule  des  aittres  parts  a  nombre  de 
vingt  personnes,  le  capitaine  compris.  Permis  au  Sieitr  Jean  Jacques  Le- 
thuillier,  commandant  le  navire  UMmable  Gertrude  du  Havre,  de  s'en  servir 
pourfaire  son  retour,  au  dit  lieu,  passant  a  la  Basseterre  pour  y  prendre  les 
ordres  du  gouvcrnernent  en  observant  les  ordonnanccs  et  regtemens  de  la 
marine.''^  Under  this  there  was  written,  on  the  same  paper,  an  account,  dated 
the  30th  of  October,  of  some  changes  in  the  number  of  the  crew,  and  under 
that  the  following  entry : — "  Vu  par  nous,  ecrivain  de  la  marine  charge  du 
detail  des  classes,  les  vingt  cinq  personnes  existantes  au  presort  role,  le  capi- 
taine compris.  II  est  permis  au  Sieur  Lethuillier  commandant  le  navire 
UAimable  Gertrude,  du  Havre,  defair  son  retour  au  dit  lie  en  se  conformant 
aux  ordonnances  et  reglemens  royaux  de  la  marine.  Jl  Basseterre  Guada- 
loupe, le  2  Janvier,  1799."  On  another  paper,  called  Le  Conge,  dated  the 
16th  of  October,  which  was  read  on  the  part  of  the  plaintiff",  there  was  written 
at  the  bottom  as  follows  : — "  Vu  de  relache  a  la  Basseterre  Gua-  r-  ^nmn  -, 
daloupe,  *pour  y  attendre  un  c.onvoi  pour  France.     Ce  28  Octo-  L  J 

ber,  1778.  Monenlheill."  The  captain  swore  that  he  understood  the  only 
reasons  for  the  condition  in  the  muster-roll  that  he  should  go  to  Basseterre 
were,  the  convoy  was  to  be  at  that  place,  and  that  he  might  take  such  despatches 
as  were  ready  for  Europe.  He  had  not  objected  to  it;  because,  in  the  regular 
course  of  the  voyage  to  France  from  Pointe  a  Pitre,  he  must  have  gone  that 
way,  close  under  the  guns  of  Basseterre,  in  order  to  avoid  Montserrat,  there 
being  no  other  road  except  they  were  to  keep  quite  to  the  leeward,  which  is 
not  the  custom.  If  he  had  arrived  there  in  the  day-time,  he  would  not  have 
cast  anchor,  but  would  have  sent  his  boat  for  the  despatches  ;  but  having  arrived 
at  night,  his  ship  had  been  detained,  contrary  to  his  intention  and  expectation. 
The  defendant's  counsel,  to  invalidate  the  captain's  testimony,  besides  the  mus- 
ter-roll and  the  entry  under  it,  as  above  stated,  read  the  protest  made  by  the 
captain  on  his  arrival  at  Dover,  and  also  his  deposition  in  answer  to  the  29th 
interrogatory  in  the  proceedings  in  the  Admiralty,  on  the  condemnation  of  the 
ship.  The  words  of  the  protest,  on  which  they  relied,  were  as  follows : — 
♦'Whereupon  he  (the  captain)  waited  on  the  proper  officer  at  Pointe  a  Pitre 
for  his  muster-roll,  and  was  by  him  informed  it  could  not  be  granted,  but  on 
condition  that  he  should  first  sail  to  Basseterre,  and  there  wait  the  direction  of 
the  general  of  the  island."  And  in  a  subsequent  part,  "Whereupon  at  his 
(the  captain's)  instance,  the  said  John  Nicholas  Lethuillier,  his  father,  came  to 
Basseterre,  and  went  with  Messrs.  Gobert  and  Botuel,  commissioners  of  com- 
merce, to  the  superintendent,  and  also  to  the  general  of  the  island,  stating  to 
them  that  the  said  ship  and  cargo  were  insured  upon  condition  that  she  should 
have  departed  from  the  island  of  Guadaloupe  before  the  31st  of  December,  the 
terms  of  which  insurance  they  judged  it  essential  to  fulfil;  notwithstanding 
which  they  were  still  refused  permission  to  depart,  and  were  kept  there  until 
after  the  31st  of  December."  The  deposition  relied  upon  was  as  follows: — 
*'At  the  time  the  ship  was  first  pursued  and  taken  *she  was  steer-  ^  ^aaa  ~\ 
ing  her  course  towards  Brest.     Her  course  was  not  altered  upon  L  -^ 

the  appearance  of  the  vessel  by  which  she  was  taken.  Her  course  was  at  all 
times,  when  the  weather  would  permit,  directed  to  Brest,  for  which  port  she 
was  directed  to  sail,  although  the  destination  was  for  Havre  de  Grace,  by  the 
ship's  papers.     She  was  not,  before  nor  at  the  time  of  the  capture,  sailing 


374  OF    NON-COMPLIANCE    WITH    WARRANTIES. 

* 

beyond  or  wide  of  Havre  de  Grace.  She  was  then  about  eight  leagues  west 
of  Ushanf,  and  her  course  was  not  altered  to  any  other  port  or  place,  Init  was 
obliged  to  be  directed  to  Brest.,  in  consequence  of  the  orders  he  liad  received, 
subsequent  to  the  delivery  of  the  ship's  papers,"  In  answer  to  the  27th  inter- 
rogatory, his  deposition  was,  "That  all  the  ship's  papers  found  on  board  were 
true  and  fair,  and  none  of  them  false  and  colourable."  At  the  trial,  the  captain 
swore  that  he  had  received  directions  to  keep  in  the  course  to  Brest.,  at  Basse- 
terre., from  his  father,  who  had  formerly  commanded  the  ship,  but  this  was 
done  as  the  safest  way,  in  time  of  war,  of  getting  to  Havre,  which  still  con- 
tinued to  be  the  place  of  the  ship's  destination.  Upon  this  evidence  the  defend- 
ant's counsel  made  two  objections,  as  grounds  for  a  new  trial, — 1st,  That  there 
had  been  no  inception  of  the  voyage  on  the  24th  of  October,  nor  till  after  the 
31st  of  December;  2ndly,  that  the  ship  never  sailed  on  the  voyage  insured, 
viz  :  from  Guadaloiipe  to  Havre,  but  on  a  voyage  from  Guadaloirpe  to  Brest,  {d) 
After  both  these  points  had  been  fully  argued  at  the  Bar, 

Lord  Mansfield  said. — "In  my  apprehension,  there  is  no  contradiction 
between  the  parol  evidence,  and  the  protest  and  depositions.  This  captain 
had  never  heard  of  the  case  of  Bond  and  Nutt.  Under  an  insurance  at  such 
a  place  as  Guadaloiipe  and  Jamaica,  the  ship  is  protected  in  going  from  port 
to  port  in  the  island.  But  the  question  here  is,  whether  the  voyage  was  bona 
fide  commenced,  and  stopped  by  accident }  As  to  the  condition  about  taking 
r  *fi8i  1  ^^^  orders  of  government,  the  ship  could  not  sail  from  any  part  of 
L  J  the  *island  without  the  governor's  leave.      But  the  captain,  when 

he  left  Pointe  a  Pitre,  expected  to  meet  a  convoy  at  Basseterre,  and  to  pro- 
ceed immediately  without  interruption.  A  convoy  had  been  published,  and  he 
certainly  would  have  gone  to  Basseterre,  at  any  rate,  independent  of  the  clause 
in  the  muster-roll.  With  regard  to  the  second  point,  the  voyage  to  Brest  was, 
at  most,  but  an  intended  deviation  not  carried  into  eflect." 

Mr.  Justice  Bidler. — "The  case  in  1777,  between  the  same  parties,  is  in 
point,  (a)  There  was  no  embargo  there,  nor  in  the  present  case,  when  the 
ship  sailed.  There  must  be  a  lawful  bond  fide  sailing,  which,  I  think,  there 
was  in  this  case.     The  ship  was  completely  ready  in  all  respects." 

The  rule  for  a  new  trial  was,  therefore,  discharged. 

The  judgment  given  in  the  last  cause  was  not  satisfactory  to  about  twenty 
other  underwriters  on  the  same  policy,  nineteen  of  whom  obtained  leave  to 
consolidate  their  different  causes  upon  the  usual  terms,  in  order  to  bring  the 
question  once  more  into  Court.  Accordingly,  in  the  ensuing  Sittings,  the  cause 
was  set  down  for  trial.  It  was  the  case  of  Thelluson  v.  Staphs,  {h)  In  this 
cause,  the  second  point  as  to  the  deviation  was  abandoned ;  and  on  the  first,  the 
same  evidence  was  given  as  upon  the  former  occasion.  The  point  was  again 
fully  argued  for  the  defendant. 

Lord  Mansfield, — "The  single  question  on  this  policy  is,  whether  the  ship 
sailed  on  her  voyage  to  Havre  before  the  31st  of  December?  She  certainly 
sailed  from  Pointe  a  Pitre  completely  loaded  before  that  time.  The  doubt  on 
the  first  question  of  this  sort  was  this  ;  the  policy  was  "at  and  from  Jamaica  f* 
now  the  word  at  certainly  comprises  the  whole  island,  and,  under  that  word, 
you  may  sail  from  one  port  to  another  every  where  along  the  coast  of  the 
r  *fiS2  1  ^^'^"'^'-  '^'^®  ^'^^P'  therefore,  in  that  sense,  was  still  at  Jamaica, 
L  "°^  J  after  she  had  got  to  Blue  fields.  She  did  not  leave  Blue  fields  "till 
after  the  day  named  in  the  warranty,  and  that  place  was  quite  out  of  the  course 


(£?)  Ante,  p.  675. 

(«)  See  Lord  Mansfield's  opinion  in  Bond  v.  Nutt,  where  he  quotes  the  case  alluded  to, 
ante,  p.  675. 

(i)  Sit.  at  Guild.  Easter  Vac.  1780.  Park  Ins.  681. 


OF    KON-COMPLIANCK    WITH    WARRANTIES.  375 

of  navigation  from  St.  .^nne\<i  to  Ens^fand.  I  own  at  tho  trial,  1  tliouirlit  the 
voyage  to  England  did  not  commence  till  the  ship  sailed  from  lilucfiddfi,  and, 
according  to  my  opinion  then,  a  verdict  was  found  for  the  defendant.  Ifnt 
there  was  a  doubt.  I  therefore  wished  (as  I  always  do  in  such  cases)  that  the 
opinion  of  the  Court  might  be  taken  in  order  to  settle  the  point.  The  case, 
when  it  came  on  in  Court,  was  very  ably  argued  ;  I  was  completely  convinctul, 
and  the  Court  were  unanimously  of  opinion,  that  the  voyage  to  England  began 
wlien  the  ship  sailed  from  St.  Anne's;  and  ui)on  the  second  trial,  the  plaintiff 
had  a  verdict.  Ear/e  and  I/arris  was  still  a  stronger  case.  There  an  embaroro 
was  actually  published,  before  the  ship  sailed,  and  the  captain,  immediately 
after  crossing  the  bar,  returned  to  make  a  protest,  and  sent  his  ship  knowingly 
into  the  embargo:  but  he  swore  that  he  expected  the  embargo  was  to  be  taken 
off,  and  that  he  should  proceed  immediately  upon  his  voyage ;  and  the  jury 
believed  him.  {a)  In  this  case  to  go  by  steps.  There  was  public  notification 
of  a  convoy  to  be  at  Basseterre  on  the  25th  of  October.  The  captain  thought 
that  it  might  be  stopped  a  day  or  two  at  Marllnico,  and  that  he  should  get  to 
Basseterre  in  time.  He  worked  night  and  day.  paid  double  fees  for  his  papers, 
and  sailed  with  full  expectations  of  pursuing  his  voyage  directly.  He  knew  of 
no  embargo,  and  Basseterre  was  directly  in  his  road.  In  that  respect,  this  case 
differs  strongly  from  Bond  v.  Nutt.  He  was  even  in  the  regular  voyafre 
obliged  to  pass  under  the  cannon  of  Basseterre.  He  had  his  muster-roll,  on 
condition  of  calling  there  :  but  he  made  no  difficulty  of  taking  it  on  that  condi- 
tion, because  he  knew  he  must  pass  that  way  at  all  events.  Did  he  not  bond 
fide  begin  his  voyage  .►*  He  certainly  had  no  idea,  when  he  sailed  from  Fointe 
a  Pitre,  of  meeting  with  any  slop.  So  it  was  in  the  former  case  of  Thellu- 
son  V.  Fergusson.  (6)  There  was  no  idea  of  the  embargo  in  that  r-  *(^qo  -i 
*case.  when  the  ship  sailed.      Here  there  is  not  the  least  suspicion  L  -J 

of  fraud.  This  captain  certainly  did  not  know  of  the  decision  in  Bond  v. 
Nutt.  He  thought,  when  he  was  detained  at  Basseterre  beyond  the  31st  of 
December,  that  the  policy  was  forfeited,  which  is  a  strong  circumstance  in  the 
plaintiff's  favour,  for  it  shews  that  the  sailing  was  not  colourable.  This  ques- 
tion has  undergone  the  consideration  of  a  special  jury  and  of  the  Court. 
Underwriters  have  a  right  to  litigate  questions  which  seem  to  them  to  be  in 
their  favour.  But,  at  least,  there  should  be  an  end  of  litigation.  If  you 
should  be  of  the  same  opinion  with  the  former  jury  and  the  Court,  you  will 
find  for  the  plaintiff;"  which  they  did  accordingly.  The  cause  of  the  twen- 
tieth underwriter,  on  the  same  policy,  who  refused  to  consolidate,  stood  next 
in  the  paper  for  trial :  but  upon  the  above  verdict  being  given,  his  counsel  con- 
sented that  a  verdict  should  also  be  entered  against  him. 

But  in  the  case  of  Moir  v.  Royal  Exchange  Assurance  Company.,  (a) 
where  the  warranty  is  to  depart  on  or  before  a  given  day,  she  must  be  actually 
out  of  her  port,  and  it  is  not  enough  that  she  break  ground  and  commence  her 
homeward  voyage,  so  as  to  have  satisfied  a  warranty  to  sail,  and  the  Court 
afterwards  refused  to  grant  a  new  trial.  This  case  afterwards  came  on  before 
the  Court  of  Common  Pleas  on  a  special  case,  and  after  it  had  been  fully 
argued,  the  Court  agreed  with  the  "King's  Bench.  And  in  the  case  of  Ridsdale 
V.  Newman^  (b)  where  a  ship  was  insured  at  and  from  Fortneuff  to  London, 

(a)  Earle  v.  Harris,  at  Guild.  Hil.  Vac.  1780.  Park  Ins.  682. 

(b)  The  Grenada  case,  avle,  p.  G75. 

(a)   4  Camp.  84,  and  see  1  Marsh.  570.  ^ 

{I))  3  M.  &  S.  456.  And  in  Nelson  v.  Salvador,  Moo.  &  M.  309,  it  was  held  that  a 
warranty  to  sail  "on  or  before  a  particular  day,"  was  not  fultilled  it"  the  ship  did  not  com- 
pletely unmoor  on  that  day,  though  she  had  then  her  cargo  on  board,  and  being  quite  ready 
to  sail,  was  only  prevented  by  stress  of  weather. 


376  OF    NON-COMPLIANCE    WITH    WARRANTIES. 

warranted  to  sail  on  or  before  a  given  day,  dropi)ing  down  from  Portneuff  to 
Quebec  with  an  incomplete  crew,  and  without  her  clearances,  which  she  could 
only  oi)tain  at  Quebec^  is  not  a  comi)liance  with  the  warranty,  as  she  did  not 
sail  from  Quebec  till  after  the  day. 

^  "1       *The  construction  which  is  put  upon  the  word  "sail"  in  certain 

L    ■  "^^     J  instances,  was  fully  considered  in  the  Court  of  King's  Bench  in 
the  recent  case  of  Lung  and  othern  v,  Andenlon.  (a)     It  was  an  action  on  a 
policy  on  goods  "at  and  from  Demerara  to  London^  warranted  to  sail  from 
Dememra  on  or  before  the   1st  of  August,  1823."     The  only  question  was, 
whether  the  warranty  had  been  complied  with.     The  ship  having  taken  in  all 
her  cargo  and  obtained  her  clearances,  sailed  from  the  town,  which  is  on  the 
bank  of  the  river,  about  one  at  noon  on  the   1st  of  August,  passed  the  fort, 
and  anchored  the  same  day  about  two  miles  beyond  the  port.     She  anchored 
there  by  the  advice  of  the  pilot,  and  he  being  unwilling  to  sail  again  at  the  night 
tide,  she  lay  there  for  twenty-four  hours,  and  proceeded  on  her  voyage,  upon 
which  she  was  afterwards  lost.     There  is  a  shoal  about  ten  or  twelve  miles 
from  the  fort,  at  the  outside  whereof  large  inward-bound  vessels  heavily  laden 
usually  anchor,   and  put  out  part  of  their  cargo,  and  large  vessels  outward- 
bound  usually  anchor  and  complete  their  cargo.     The  pilots  usually  leave 
vessels  outward-bound  after  passing  this  shoal.      From  these  facts  it  was  con- 
tended by  the  defendant,  that  the  words  "sail  from"  were  of  the  same  import 
as  "depart,"  and  that  the  vessel  had  not  sailed  from  Demerara  on  the  1st  of 
August  within  the  meaning  of  the  warranty.     A  verdict  was  found  for  the 
plaintiffs.     A  rule  nisi  having  been  obtained  on  a  subsequent  day,  the  judg- 
ment of  the  Court,  after  considering  the  question,  was  delivered  hy  Abbott,  C. 
J. — t^It  is  clear  that  a  warranty  to  sail,  without  the  word  'from'  is  not  com- 
plied with  by  the  vessel's  raising  her  anchor,  getting  under  sail,  and  moving 
onwards,  unless  at  the  time  of  the  performance  of  these  acts  she  has  every 
thing  ready  for  the  voyage,  and  such  acts  are  done  at  the  commencement  of  it, 
nothing  remaining  to' be  done  afterwards.     This  appears  from  tlie  cases  of 
Bond  V.  Nutt,  and  Bidsdale  v.  Newnham.     And  if  it  had  been  necessary  for 
r    '  RHi^     1  ^^^^  ^^'P  *"  question  to  take  in  a  part  of  her  cargo  at  *the  outside 
L      °°^     J  of  the  shoal,  she  would  not  only  not  have  sailed  from  Demerara 
within  the  meaning  of  this  warranty,  but  would  not  even  have  sailed  within 
the  meaning  of  the  other  warranty  to  which  I  have  alluded.     It  was  contended, 
that  the  words  '  from  Demerara'  must  have  the  same  sense  in  every  case,  and 
must  therefore  be  construed  to  mean  "sail  from  the  outside  of  this  shoal,'  that 
is,  from  the  place  at  which  some  vessels  take  and  unload  a  part  of  their  cargo, 
for  otherwise  one  vessel  might  be  said  to  sail  from  Demerara  before  she  had 
arrived  at  that  part  of  the  sea  from  which  another  vessel  must  depart  before 
she  could  be  said  to  sail  from  Demerara.     And  if  that  part  of  the  sea  which 
lies  at  the  outside  of  the  shoal  was,  in  a  general  and  popular  sense,  part  of 
Demerara,  this  argument  might  prevail.     But  the  fact  appears  to  be  otherwise. 
For  whether  we  take  Demerara  to  he  the  name  of  a  province,  as  it  is,  or  of 
the  river  which  is  sometimes  called  the  river  Demerara,  though  perhaps  more 
properly  the  river  of  Demerara,  we  think  no  person  speaking  in  popular  lan- 
guage would  say  that  a  ship,  being  at  the  outside  of  this  shoal,  at  a  distance  of 
ten  or  twelve  miles  from  land,  was  at  Demerara.     It  appears  in  the  present 
instance,  that  large  vessels  heavily  laden  usually  anchor  at  the  outside  of  the 
shoal,  and  take  in  part  of  their  cargo  there.     In  the  case  of  such  a  ship,  there- 
fore, goods  so  laden  may  be  considered  as  laden  at  Demerara,  by  reason  of 
the  usa^e :  and  in  such  a  Ase  a  ship  would  not  be  said  to  have  sailed  until  she 


(r/)   3B.  &  C.  495. 


OF    NON-COMPLIANCE    WITH    WARRANTIES.  377 

liad  completed  her  lading  and  quitted  that  part  of  the  sea.  In  the  case  of  such 
a  ship,  the  taking  in  part  of  her  cargo  there  will  be  like  the  taking  in  a  part  at 
the  outside  of  the  bar  at  Oporto,  which  was  held  to  be  M'ithin  the  protection  of 
a  policy,  by  reason  of  the  usage  in  Kingston  v.  Knohbs.  (a)  But  the  proper 
effect  of  such  a  usage  will  not  extend  beyond  the  instances  that  fall  under  the 
usage.  If  in  the  present  instance  the  outside  of  this  shoal  had  been  part  of 
the  port  of  the  ship's  departure,  or  in  any  popular  and  *general  r-  ^ 
sense  a  part  of  Bemerara,  we  should  (as  I  have  before  intimated)  L  "^"  J 
have  thought  the  warranty  not  complied  with  ;  but  we  cannot  say  that  the  war- 
ranty has  not  been  complied  with  in  this  case,  merely  because  it  would  not 
have  been  complied  with  in  the  case  of  some  other  ship  which  mi^ht  have 
intended  to  take  a  part  of  her  cargo  at  the  outside  of  this  shoal.  And  our 
decision  has  not  the  effect  of  attributing  two  meanings  to  the  name  Bemerara, 
but  it  is  only  in  conformity  to  the  authorities  and  distinctions  as  to  thte  meaning 
of  the  word  'sail.'  and  to  that  extension  which  may  be  given  to  the  words  of  a 
policy  by  usage  in  particular  instances." 

A  similar  rule  of  construction  was  adopted  in  a  more  recent  case,  {b)  The 
plaintiff  effected  an  insurance  on  freight  on  the  ship  Perseverance,  subject  to 
the  rules  and  regulations  of  a  certain  association,  at  North  Shields,  one  of 
which  was  that  vessels  should  not  sail  from  ports  in  Ireland  after  the  1st  of 
September;  and  that  the  time  of  clearing  from  the  Custom-house  should  be 
deemed  the  time  of  sailing,  provided  the  ship  were  then  ready  for  sea. 

The  Perseverance  being  in  the  port  of  Sligo,  dropped  down  the  river  before 
the  1st  of  September,  in  readiness  for  sea,  except  that  she  had  not  her  full 
quantity  of  ballast,  there  being  a  bar  at  the  mouth  of  the  river,  which  the  ship 
could  not  have  crossed  with  that  quantity  on  board.  Boats  were  waitino-  on 
the  outside  to  ship  the  remainder  of  the  ballast,  and  the  vessel  crossed  the  bar 
on  that  day,  but  struck  the  bar  in  doinfr  so,  and  the  master  to  ascertain  what 
damage  the  ship  had  received,  crossed  Bonegal  Bay  to  the  port  of  Kellybcgs, 
a  distance  of  seven  miles.  The  ship  on  arriving  at  Kellybegs,  was  found 
not  to  be  injured,  and  the  ballasting  was  completed  there.  It  was  finished  on 
the  4th  of  September,  but  the  ship  was  detained  by  accidental  circumstances 
till  the  8th,  when  she  sailed  on  her  voyage,  and  was  subsequently  lost.  The 
ship's  proper  complement  of  men  was  nine ;  she  left  the  Bally  shannon  river 
with  only  *eight,  the  carpenter  being  absent.  Another  carpenter  r-  ^,r,Q^  -, 
was  hired  at  Kellybegs,  and  sailed  on  the  voyage.     At  the  trial  L  -J 

before  Littledale,  J.,  at  the  Spring  Assizes  for  Neiccastle-Kjjon-Tijne,  the 
above  facts  were  found  for  the  opinion  of  the  Court.  For  the  underwriters  it 
■was  contended  that  the  ship  did  not  sail  on  the  1st  of  September,  accordino'  to 
the  rules  referred  to  by  the  policy.  A  verdict  was  found  for  the  plaintiff,  sub- 
ject to  the  opinion  of  the  Court.  The  judgment  Avas  afterwards  delivered  by 
Lord  Tenterden,  C.  J. — "The  general  principle  of  the  decisions  is  this,  that 
if  a  ship  quits  her  moorings  and  removes,  though  only  to  a  short  distance, 
being  perfectly  ready  to  proceed  upon  her  voyage,  and  is  by  some  subsequent 
occurrence  detained,  that  is  nevertheless  a  sailing:  but  it  is  otherwise  if,  at  the 
time  when  she  quits  her  moorings,  and  hoists  her  sails,  she  is  not  in  a  condi- 
tion for  completing  her  sea  voyage.  In  the  present  case,  by  the  regulations 
which  have  been  referred  to,  the  last  day  for  a  vessel,  sailing  from  any  port  in 
Ireland  is  the  1st  of  September ;  and  the  objection  which  prevails  with  me  is, 
that  she  was  not  in  a  condition  to  sail  during  the  1st,  because  she  had  not  on 
that  day  the  proper  quantity  of  ballast  to  enable  her  to  cross  the  Atlantic.  It 
is  answered  that  she  could  not  take  in  her  whole  ballast  before  she  crossed  the 


(3)   1  Camp.  508,  n.     Ante,  p.  207.  (J)  Pettegrew  v.  Pringle,  3  B.  &  Ad.  514. 


378  OF    NON-CONPLIANCE    WITH    WARRANTIES. 

bar;  but  that  everything  was  prepared  for  landing  the  remainder  afterwards: 
the  vessel  struck  on  tlie  bar  in  passing,  and  the  master  thought  it  best  to  i)Ut 
into  another  port  before  he  completed  his  ballast.  Now  if  the  sliip  had  taken 
in  her  whole  ballast  on  the  1st  of  September,  I  think  it  might  have  been  said 
that  she  sailed  tliat  day,  according  to  the  regulations  :  but  as  unfortunately  she 
was  not  al)le  to  load  the  whole  ballast  for  her  voyage  on  the  1st,  she  was  not, 
on  that  day,  in  a  condition  to  go  on  with  her  voyage ;  and,  consequently  I  am 
of  opinion  that  the  plaintiff  cannot  recover  on  this  policy,  and  a  nonsuit  must 
be  entered." 

Parke,  J. — "•!  am  of  ihe  same  opinion,  and  agree  in  the  rule  for  the  con- 
struction of  this  kind  of  warranty,  which  has  been  laid  down  by  my  Lord,  and 
r  *Rft«  1  ^^''^if"''  '-^  ^^^'^  stated  by  the  *Court  in  somewhat  didercnt  terms, 
L  -J  but  to  the  same  effect,  in  Lung  v.  Anderdon.  (a)     Now  here  the 

vessel  had  not,  according  to  the  language  used  in  that  case,  'every  thing  ready 
for  the  performance  of  her  voyage,'  on  the  1st  of  September,  nor  could  it  be 
said  when  slie  got  under  sail,  that  'nothing  remained  to  be  done  afterwards;' 
for  she  had  to  take  on  board  what  was  material  for  the  prosecution  of  the  voy- 
age, a  larger  portion  of  ballast :  and  no  distinction  can  be  drawn  lietween  the 
necessity  of  taking  in  more  ballast,  and  that  of  receiving  part  of  the  cargo." 

There  is  a  case  of  Cockrane  v.  Fiaher,  [b)  in  error  from  the  Court  of  Exche- 
quer, in  which  the  Court  of  Error  seem  to  draw  a  distinction  between  the 
words  "sailing  for  a  place,"  and  "departure  from  a  place."  In  this  case  the 
ship  was  "warranted  not  to  sail  for  British  North  America,  after  the  15th  of 
August,^''  and  on  that  day  she  was  in  the  dock  at  Dublin,  ready  for  sea,  and 
having  cleared  for  Quebec  was  hauled  out  of  the  dock  into  the  Liffey,  as  early 
in  the  afternoon  as  the  tide  permitted.  In  consequence  of  the  wind  she  could 
not  get  a  sail,  but  was  warped  down  the  river  about  half-a  mile,  when  the  tide 
failing  she  took  the  ground.  She  was  warped  a  little  further  the  next  day,  and 
took  the  ground  affain  about  ten  miles  from  the  harbour's  mouth.  On  the  17th, 
the  wind  having  changed,  she  set  sail,  and  got  out  to  sea.  The  jury  found 
that  the  master  and  crew,  by  hauling  out  of  dock,  and  warping  down  the  river 
on  the  15th,  intended  to  put  themselves  in  a  more  favourable  situation  for  prose- 
cuting the  voyage  from  Dublin  to  North  Jimerica,  and  not  merely  to  fulfil 
the  warranty,  at  the  same  time  when  the  vessel  quitted  the  dock,  they  knew  it 
was  impossible  to  get  to  sea  that  day.  Lord  Denman,  C.  J.,  said. — "We  are 
of  opinion  that  this  vessel  must  be  taken  under  the  circumstances  stated,  to  have 
been  on  the  15th  of  August  in  the  prosecution  of  the  voyage  to  North  America, 
for  in  point  of  fact  she  had  commenced  her  voyage.  In  order  to  bring  the 
r  *RSQ  1  *t'ase  within  those  decisions  in  which  it  has  been  held  that  the 
L  -^  voyage  had  not  commenced,  and  that  therefore  the  policy  did  not 

attach,  Mr.  Cresswell  has  been  oljliged  to  assume  that  there  was  a  particular 
^terminus  a  quo'  contemplated  in  this  policy;  but  when  we  look  at  the  terms 
of  it  we  do  not  find  that  that  is  warranted  as  a  term  of  the  policy ;  but  being  a 
time  policy,  in  general,  the  warranty  is  that  she  shall  not  sail  for  British  Noi'th 
America  after  the  15th  of  August.  If,  therefore,  she  was,  in  fact,  in  the 
prosecution  of  her  voyage  for  any  place,  which  voyage  is  not  proved  to  have 
commenced  after  the  i5th  of  August,  the  warranty  is  not  broken;  and  as  the 
facts  appear  to  us  clearly  to  shew  that  she  was  in  the  prosecution  of  her  voyage 
on  the  15th  of  August,  having  made  a  movement,  though  in  the  river,  for  the 
purpose  of  proceeding  to  sea,  and  over  the  sea,  to  North  America,  the  war- 
ranty has  not  been  broken,  and  the  parties  are  entided  to  recover.  That  makes 
this  case  of  no  very  general  application,  and  distinguishes  it  from  all  those  that 

(fl)  3  B.  &  C.  499,  ante,  p.  684.  (5)  1  C,  M.  &  R.  809;  5  Tyr.  496. 


OF    NO\-CO!rtPLIANCE    WITH    WARRANTIES.  379 

have  been  before  the  Court  on  former  occasions  :  for  there  is  no  particular  point 
from  which  the  voyage  is  contemplated  as  commencing.  If  that  had  been  so, 
we  should  have  been  bound  to  consider  the  eflect  of  the  word  'sailing'  as  con- 
tradistinguished from  'departure,'  wliich  we  do  not  feel  ourselves  called  upon 
to  do  on  the  present  occasion.  Mr.  Cressivdl  has  very  properly  given  up  the 
point,  that  the  word  'sailing'  can  be  confined  to  the  mere  technical  act  of  hoist- 
ing the  sails,  or  anything  of  tliat  sort ;  the  fair  question  is,  as  he  has  stated, 
whether  at  the  time  in  question  the  voyage  can  be  said  to  have  commenced, 
and  whether  the  ship  was,  in  truth,  proceeding  on  her  voyage  to  America. 
Now  considering  that  there  was  no  distinct  point  of  commencement  pointed  out 
by  this  policy,  we  think  that  the  vessel  was  in  the  prosecution  of  her  voyage, 
and  consequenUy  within  the  protection  of  the  policy." 

The  same  principles  of  law  were  adhered  to  in  the  recent  case  of  Graham^ 
Executrix^  v.  Barrets,  [a)  to  which  I  have  *already  referred,  and  r-  ^gg^  -, 
which  is,  I  believe,  the  last  case  which  has  been  decided  upon  this  L  J 

subject.     The  insurance  was  on  a  time  policy,  on  the  ship  Castlereagh,  at  and 
from  1st  April,  1831,  to  1st  January,  1832,  warranted  not  to  "sail  foreign" 
after  the  time  restricted  by  the  Liberal  Premium  Club  Rules.      The  rules  or 
warranties  of  this  club  limited  the  times  of  sailing  to  different  parts  of  the 
world,  and  by  a  distinct  warranty,  (the  ninth)  it  was  declared,  that  the  time  of 
clearing  at  the  Custom-house  should  be  deemed  the  time  of  sailing,  provided 
the  ship  was  tlien  ready  for  sea.      The  Casflereagh  was  bound  for  the  Bay  of 
Fundy  from  Dublin,  and  the  last  day  for  sailing,  by  the  rules,  was  the  1st 
September.     She  cleared  out  on  the  31st  August,  and  dropped  down  the  Lif- 
fey  on  the  1st  September  with  an  incomplete  crew  (though  a  full  complement 
was  engaged  before  she  cleared  out)  to  the  Pigeon  Hole  within  the  port  or  har- 
bour of  Dublin,  assisted  by  a  boat's  crew.      During  that  day  the  whole  of  the 
crew  came  on  board.      In  the  afternoon  and  evening  of  the  1st  the  wind  was 
unfavourable  for  the  Castlereagh  going  to  sea,  but  a  little  before  midnight  it 
became  fair,  it  being  then  low  water,  and  she  went  out  as  soon  afterwards  as 
she  could  Avith  a  fair  wind.      On  the  2nd   September,  about  half-past  three 
o'clock,  she  sailed  from  the  Pigeon  Hole,  and  proceeded  on  her  voyage,  and 
ultimately,  and  not  before,  quitted  the  port  of  Dublin  about  half-past  five  on 
the  morning  of  the  2nd  September.     The  Pigeon  Hole  is  about  two  miles 
below  the  Custom-house,  and  from  the  Pigeon  Hole  to  the  mouth  of  the  port 
of  Dublin  is  two  miles  further.     At  the  trial  before  Alder  son,  J. ,  at  the  Spring 
Assizes  for  Northumberland,  1833,  a  verdict  was  found  for  the  plaintiff,  sub- 
ject to  the  opinion  of  the  Court  upon  the  above  case.      The  question  for  the 
opinion  of  the  Court  was,  whether  the  sailing  of  the  Castlereagh  under  the 
circumstances  above  detailed  constituted  a  sailing  within  the  terms  of  the  war- 
ranty.    Lord  Denman,  C.  J.,  "this  is  an  action  on  a  time  policy,  the  warranty 
being,  not  to  sail  foreign  after  the  time  limited  in  the  liiberal  Premium  Club 
Rides.     I  feel  great  doubt  on  the  first  question  raised  for  the  defend-  r-    ^gg,      -, 
ant,  *namely,  whether  the  rules  can  be  referred  to  for  any  purpose  L  -^ 

but  to  ascertain  the  times  to  which  the  vessel  is  restricted  in  sailing  to  different 
parts  of  the  world.  But  if  the  ninth  article  is  to  be  considered  as  referred  to 
by  the  policy,  the  question  then  is,  whether  that  warranty  has  been  complied 
Avith.  (His  Lordship  then  read  it.)  By  this  regulation  the  time  of  clearing 
is  to  be  deemed  the  time  of  saiUng  'provided  the  ship  is  then  ready  for  sea.' 
It  certainly  is  most  convenient  for  both  parties  to  have  such  a  stipulation  as 
this,  that  the  time  of  sailing  may  be  referred  to  a  period  of  time  capable  of 
being  ascertained  by  both ;  and  the  time  of  clearing  is  such  a  period.     The 


(a)  5B.  &  Ad.  1011. 


380  OF    NON-COMPLIANCr:    WITH    WARRANTIES. 

simple  question  then  is,  wliether  the  ship  was  ready  for  sea  when  she  was 
cleared?  Now  at  that  time  there  was  a  crew  engaged,  but  wliere  they  were, 
whether  within  ten  miles  or  forty,  does  not  appear.  It  cannot  be  said  that  the 
ship  was  ready  for  sea  when  she  had  only  the  master,  mate,  one  seaman  and 
two  boys  on  board,  and  could  not  get  down  the  Liffiy  without  assistance." 

Liltiedale,  J. — "  There  was  no  sailing  in  tliis  case  according  to  the  ordinary 
sense  of  that  word  by  the  1st  of  September.  Then  the  question  is,  first,  whether 
the  ninth  warranty,  which  gives  a  different  interpretation  to  the  word  'sailing' 
is  to  be  considered  as  inserted  in  this  policy  }  and  I  think  we  ought  not  to  con- 
strue this  policy  so  stricdy  as  to  hold  that  warranty  excluded.  The  next 
question  is,  whether  the  assured  complied  with  the  condition  of  sailing,  accord- 
ing to  that  warranty.'  At  the  time  when  the  clearances  were  obtained  the  crew 
were  not  actually  on  board ;  it  does  not  appear  how  that  happened,  whether 
they  were  ready  to  come  on  board  when  it  was  thought  proper  to  call  for  them, 
or  whetlier  they  were  at  a  distant  pl-ace,  or  dispersed  over  the  town  or  harbour 
of  Dublin;  at  all  events  they  were  not  on  board.  Then  we  have  to  inquire 
whether  the  words  'time  of  clearing'  in  the  warranty,  are  to  be  considered  as 
giving  a  continual  protection  down  to  the  time  when  the  crew  joined  the  ship  ; 
and  I  rather  think  that  the  words  ought  not  to  be  restrained  to  the  actual  time 
-,  of  clearance,  but  that  the  'clearance'  is  a  continuing  thing,  and 
L  '^^^^  J  *overrides  the  whole  time  down  to  tl;e  period  on  the  1st  September 
when  the  complete  crew  was  on  board." 

Palteson,  J. — "I  am  also  of  opinion  that  the  plaintiff  cannot  recover.  Sup- 
posing that  the  ninth  clause  of  warranty  is  to  be  considered  as  part  of  the  policy, 
I  think  the  vessel  was  not  ready  for  sea  according  to  that  clause.  The  words 
'then  ready  for  sea,'  must  be  referred  to  the  31st  o{  August,  when  she  obtained 
her  clearances,  and  at  that  time,  the  crew  appear  to  have  been  wandering  about 
Dublin.  They  were,  indeed,  engaged,  but  if  that  were  held  sufficient,  it  might 
as  well  be  said  that  a  ship  was  ready  for  sea  if  a  cargo  was  procured,  but  not 

on  board." 

This  decision  pushes  the  principle  of  law  upon  this  subject  to  its  ultimate 
point,  for  it  appears  that  on  the  evening  of  the  1st,  the  ship  was  ready,  and 
would  have  saded  but  for  apprehension  of  the  weather,  and  only  just  keeps 
within  the  rule  laid  down  by  Lord  Mansfield  in  the  case  of  Bond  v.  Nutt,  («) 
who  says,  "If  the  ship  had  been  fairly  under  way,  and  afterwards  had  put 
back  from  stress  of  weather,"  it  would  have  been  a  sailing:  whereas  in  the 
present  case  the  ship  was  never  anything  but  stationary  on  the  1st.  Mr. 
Justice  Littledale's  judgment  would  appear  to  amount  to  judgment  for  the 
plaintiff,  for,  according  to  his  opinion,  the  ship  was  cleared  and  ready  for  the 

sea  on  the  1st. 

"In  insurances  at  and  from  London.,  warranted  to  depart  on  or  before  a 
particular  day.  it  has  long  been  a  quesdon,  what  shall  be  a  departure  from  the 
port  of  London;  or  rather  what  is  the  port  of  London;  and  it  is  singular  that 
this  point  has  never  yet  been  judicially  determined.  On  the  one  hand  it  is 
said,  that  the  moment  die  ship  is  cleared  out  at  the  Custom-house,  and  has  all 
her  cargo  on  board,  if  she  quit  her  moorings  in  the  river  on  or  before  the  day 
warranted,  that  the  Avarranty  is  complied  with.  On  the  other  side,  it  is  con- 
tended, and  with  great  appearance  of  reason,  that  a  ship  is  not  ready  for  sea,  till 
-,  she  has  got  her  Custom-house  cocket  on  board  *which  is  the  final 
L  *^^^  J  clearance,  and  which  she  cannot  have  till  she  arrive  at  Gravesend : 
that  till  this  cocket  is  received,  the  ship  dare  not  proceed  to  sea  under  a  penalty, 
and  till  then  is  not  entided  to  the  drawbacks,  and  that  Gravesend  is  always 


(a)  AntCy  p.  675. 


OF    NON-COMPLIANCE    WITH    WARRANTIES.  381 

considered  as  the  limits  of  the  port  of  London,  and  unless  the  ship  sailed  from 
thence  on  or  before  the  day  limited,  there  is  no  inception  of  the  voyao-e,  and 
the  policy  is  forfeited."  [a)  ^ 

But  the  Court  of  Common  Pleas  have  held,  in  WiUinms  v,  Marshnlh  (h) 
that  a  shij)  was  not  to  be  considered  as  having  exported  from  the  port  of  Lon- 
don, on  clearing  at  the  Custom-house  here,  nor  until  she  clears  at  Gravesend. 
Therefore  a  license  to  remain  in  force  for  the  exportation  of  the  cargo  till  the 
10th  of  September  was  not  complied  with  by  clearing  at  the  Custom-house  on 
the  9th,  and  at  Gravesend  on  the  12th  September. 

II.  The  second  species  of  warranty,  which  most  frequently  occurs  in  insu- 
rances, is  that  of  sailing  under  the  protection  of  convoy ;  that  is,  certain  ships 
of  force,  appointed  by  government,  in  time  of  war,  to  sail  with  merchantmen 
from  their  port  of  discharge  to  the  place  of  their  destination,  (c)  Accordingly, 
by  the  laws  of  this,  and  of  all  other  maritime  powers,  if  the  insured  warrant 
that  the  vessel  shall  depart  with  convoy,  and  it  do  not,  the  policy  is  defeated, 
and  the  underwriter  is  not  responsible,  (d)  We  have  already  seen,  that  every 
warranty  must  be  strictly  and  literally  complied  with;  and  that  a  liberal  and 
substantial  performance  merely  will  not  be  sufficient.  Hence  in  a  warranty  to 
sail  with  convoy  it  becomes  material  to  consider,  what  shall  be  deemed  a  con- 
voy within  such  a  condition.  Upon  this  point  it  has  been  solemnly  settled  by 
the  Court  of  King's  Bench,  in  the  case  of  Hibbert  v.  Pigov.  (e)  Mr.  Justice 
PFilles  excepted,  who  differed  from  the  otiier  learned  Judges  upon  that  occasion, 
*that  it  is  not  every  single  man-of-war,  which  chooses  to  take  a  ^  ^^ 
merchant-ship  under  its  protection,  that  will  constitute  such  a  con-  L  '  "^'^  J 
voy  as  a  warranty  means ;  but  it  must  be  a  naval  force  under  the  command  of 
a  person  appointed  by  the  government  of  the  country  to  which  they  belontr. 

This  case  came  before  the  Court  upon  a  rule  to  shew  cause  why  the  verdict 
which  the  defendant  had  obtained,  should  not  be  set  aside  and  a  new  trial  had. 
It  was  an  action  upon  a  policy  of  insurance  on  the  ship  Arundel,  Captain 
Mann,  at  and  from  Jamaica  to  London,  warranted  to  depart  with  convoy. 
The  insurance  was  at  eighteen  guineas  per  cent.,  to  return  three  per  cent.,  if 
the  ship  sailed  on  or  before  the   1st  of  August.     The  facts  appearing  on  the 
report  of  Lord  Mansfield,  who  tried  the  cause,  are  these : — On  the''  25th  of 
July,  the  Arundel  sailed  from  Morant  harbour  to  Kingston,  where  she  met 
the  Gloricux  man-of-war.  Captain  Cadogan.  who  was  likewise  on  his  way  to 
join  Admiral  Graves  at  Bluefields.      Lord  Rodney   had  appointed  Admiral 
Graves  to  rendezvous  at  Bluefields,  in  order  to  take  the  fleet  of  merchant-ships, 
which  were  to  sail  from  thence  upon  the  1st  of  August,  under  his  command, 
and  to  convoy  them  to  Great  Britain.     Captain  Mann,  upon  their  meeting  in 
Kingston  harbour,  asked  for  sailing  orders  from  Captain  Cadogan,  who  said, 
he  had  none,  not  having  himself  at  that  time  joined  the  admiral:  but  he  was 
sure  that  Admiral  Graves  would  not  sail  from  Bluefields  till  the  Glorieux  ]o\we([ 
him.      However,  if  he  should  have  sailed,  he,  Captain  Cadogan,  would  give 
Captain  Mann  sailing  orders,  and  take  every  care  of  the  Arundd  in  his  power. 
They  proceeded  together,  and  arrived  at  Bluefields  on  the  28th  of  July  ;  but 
they  found  that  Admiral  Graves  had  sailed  two  days  before.     The   Gtorieux 
and  Arundel  then  sailed  from  Bluefields,  the  former  firing  guns,  givino-  sio-nals, 
and  behaving  in  every  respect  like  a  convoy.      Upon  the  5tli  of  August,  a  sig- 
nal was  made,  that  the  fleet  was  in  sight;  and  on  the  7th,  they  joined  the  fleet 


(a)  Park  Ins.  692.  (^h)  2  Marsh.  92. 

(c)  Postlethw.  Diet.  tit.  Convoy. 

(d)  1  Emerigon,  Traite  des  Assurances,  164. 

(e)  2.3  Geo.  3,  1783.     Park  Ins.  694. 


382  OF   NON-COMPLIANCE    WITH    WARRANTIES. 

off  Cape  Anthonio.  The  Jlninilel  was  aftoiwanls  lost,  in  Srpfcmher,  in  a 
r  *fiQ'i  "1  ^'"^^^'^L'l  storm,  which  dispersed  the  whole  *Heet,  and  in  which  a 
L  J  vast  numher  of  the  ships  perished.      Upon  this  evidence,  the  jury 

were  of  opinion,  under  the  direction  of  the  Chief  Justice,  that  the  terms  of  the 
warranty  had  not  been  performed,  and  they  therefore  found  a  verdict  for  the 
underwriters,  the  defendants.  After  this  question  had  been  fully  argued  at  the 
Bar,  the  three  Judges,  Mr.  Justice  Jlshurst  being,  at  that  time,  one  of  the 
Lords  Commissioners  of  the  Great  Seal,  delivered  their  opinions  severally. 

Lord  Mansfield. — "Though  the  underwriters  and  insured  are  equally  inno- 
cent, yet  I  cannot  help  saying  that  now,  as  well  as  at  the  trial,  my  inclination 
led  me  to  wish  that  the  plaintifls  were  in  the  right.  But  the  more  it  is  argued 
it  is  the  less  liable  to  dispute.  There  are  hypotlietical  contracts  and  conditional 
contracts.  In  the  former,  the  contract  depends  upon  an  event  taking  place  ; 
there  is  no  latitude;  no  equity;  the  only  question  is,  has  that  event  happened? 
But  conditional  contracts  admit  of  a  more  liberal  construction.  Now  the  only 
question  upon  this  contract  is,  whether  this  ship  has  departed  with  convoy? 
A  great  deal  must  be  referred  to  the  usage  of  merchants.  The  government 
appoints  a  convoy  for  the  trade,  and  also  names  a  place  of  rendezvous.  Then 
comes  the  reference  to  the  usage  of  merchants ;  the  voyage  is  begun  at  Kings- 
ton, but  the  risk  only  commences  at  Bluejields.  Now,  though  Lord  Rodney 
desires  the  captain  of  the  G/orieux  to  take  any  ships  he  may  pick  up  in  his 
way,  and  convoy  them  to  Bluefields^  yet  the  warranty  in  the  policy  by  the 
usage  does  not  require  convoy  to  Bluejields.  The  second  reference  to  the  usage 
of  merchants  is,  what  is  esteemed  a  convoy  by  merchants?  A  convoy  is  a 
naval  force  under  the  command  of  that  person  whom  government  has  appointed. 
They  trust  to  the  knowledge  of  government,  which  must  be  supposed  to  be 
better  acquainted  with  the  plans  and  force  of  the  enemy,  and  with  the  strength 
necessary  to  repel  their  attempts.  Now  this  is  a  general  usage  to  which  matters 
of  this  kind  are  referred.  Then  let  us  see  what  the  case  is  here.  Lord  Rodney 
r  *fiQr  1  appoints  Admiral  Graves  to  go  with  ten  sail  of  *the  line  to  Biue- 
L  -^fields,  and  from  thence  to  convoy  the  Jamaica  trade  to  Great 

Britain.  When  they  come  to  the  place  of  rendezvous,  they  taking  sailing 
orders  from  the  admiral,  which  are  essential  to  convoy,  as  by  them  they  know 
the  signals  for  what  places  they  are  to  steer,  in  case  of  dispersion  by  storm,  or 
any  other  just  cause,  (a)  Admiral  Graves,  on  the  26th  of  July,  for  reasons 
best  known  to  himself,  thinks  he  has  got  all  the  ships  for  which  he  ought  to 
stay,  and  proceeds  on  his  voyage.  He  leaves  no  orders  for  the  Glorieux  to 
follow  him  to  Cape  Anthonio :  and  though  it  is  very  true  that  it  is  in  the  power 
of  the  commander-in-chief  to  change  the  place  of  rendezvous,  yet  in  this  case 
it  is  not  true,  as  was  supposed  in  evidence,  that  Cape  Anthonio  was  appointed. 
At  the  time  of  sailing  from  Bluejields,  the  Glorieux  was  no  part  of  the  convoy  : 
for  she  did  not  come  there  till  two  days  after  the  fleet  was  gone.  Upon  these 
facts  it  did  appear  to  me,  and  to  the  jury  at  the  trial,  that  the  warranty  was  not 
complied  with.  I  continue  of  the  same  opinion  now,  and  that  this  rule  should 
be  discharged." 

The  rule  for  a  new  trial  was  therefore  discharged. 

(a)  I  have  met  with  a  case  of  Verdon  v.  Wilmot,  at  Guildhall,  July,  1844,  in  the  time 
of  Lord  Chief  Justice  Lee,  where  the  ship  insured  had  departed  from  London,  and  arrived 
at  the  Downs  22nd  of  August,  where  the  Grafton  and  Lenox  (the  convoy)  were  under  sail, 
and  the  captain  sent  one  of  his  men  on  board  for  sailing  orders,  which  were  refused;  but  the 
commodore  said,  "  Keep  on,  and  I  will  take  care  of  you  ;"  and  the  ship  being  lost  that  night 
by  striking  on  the  shore,  the  question  was.  If  the  ship  was  put  under  convoy,  having  no 
sailing  orders  1  And  it  was  held  she  was,  and  the  plaintiff  had  a  verdict.  Note  to  the  third 
edition  of  Park  Ins. 


OF    NON-COMPLIANCE    WITH    WARRANTIES.  383 

This  question,  respecting  the  necessity  of  having  sailing  instructions  from 
the  commander  of  the  convoy,  came  on  to  be  considered  in  the  Court  of  Com- 
mon Pleas,  in  JVehb  v.  Thomson,  (b)  upon  a  motion  for  a  new  trial,  when  Mr. 
Justice  Bidler,  in  the  absence  of  Lord  Chief  Justice  Eyre,  said: — "Had  not 
my  Lord  mentioned  that  the  verdict  was  entirely  to  his  satisfaction,  I  should  not 
decide  upon  this  application  in  tlie  first  instance.  The  case  is  here  brought  to 
a  question  •'of  law.  In  point  of  law,  then,  the  general  proposition  ^  *aq7  t 
is,   that  sailing  instructions  are  necessary.      I  have  never  decided  L  J 

this  case  myself,  but  it  has  often  been  determined  at  Guildhall.  I  do  not  say 
that  there  may  not  be  cases  in  which  they  may  be  dispensed  with.  In  Hibhert 
V.  Flgoii,  my  expression  is,  'It  is  not  necessary  to  say  whether  sailing  orders 
are  essential  or  not,-  as  at  present  advised,  I  do  not  say  that  they  are  absolutely 
necessary.'  The  case  of  Victoria  v.  Cleeve  goes  no  further,  (a)  If  the  cap- 
tain, from  any  misfortune,  from  stress  of  weather,  or  other  circumstances,  be 
absolutely  prevented  from  obtaining  his  instructions,  still  it  is  a  departure  with 
convoy;  but  then  he  must  take  the  earliest  opportunity  to  obtain  them.  Gen- 
erally speaking,  unless  sailing  instructions  are  obtained,  the  warranty  is  not 
complied  with:  the  captain  cannot  answer  signals;  he  does  not  know  the  place 
of  rendezvous  in  case  of  a  storm  ;  he  does  not  in  effect  put  himself  under  the 
protection  of  the  convoy,  and  therefore  the  underwriters  are  not  benefited." 
The  other  Judges  concurred  in  this  opinion. 

In  a  still  later  case  of  France  v.  Kirwan,  (b)  in  an  action  on  a  policy  of  insu- 
rance on  the  ship  Fofornack,  at  and  from  Jamaica  to  London,  warranted  to 
depart  with  convoy  from  the  place  of  rendezvous  on  or  before  the  1st  of  August, 
1705,  it  was  admitted  that  the  vessel  never  had  got  so  near  to  the  admiral,  who 
had,  in  fact,  left  the  place  of  rendezvous  before  the  Fotomack  arrived  there,  as 
to  obtain  sailing  orders  when  he  lost  sight  of  the  convoy,  and  was  afterwards 
taken.  The  plaintiffs'  object  was  to  get  a  decision  upon  the  point,  how  far 
sailing  instructions  were  essential  to  the  sailing  with  convoy?  (c) 

Lord  Kenyon  expressed  the  strong  inclination  of  his  opinion  to  be,  that  they 
were  essential,  but  would  not  decide  it,  as  this  vessel  had  never,  in  fact,  joined. 
The  plaintiffs  were  nonsuited. 

"•Monsieur  IX Emerigon,  [a)  a  very  distinguished  French  writer  p  ^rqq  n 
upon  tliis  branch  of  jurisprudence,  puts  this  case  :^"  On  avoit  fait  L  J 

des  assurances  sur  un  navire,  de  sorte  de  Marseille  jusq'aux  Detroit  de  Gibral- 
tar, et  dans  la  police  il  etoitdit  que  le  navire  partiroit  de  Marseille  sous  I'escorte 
d'un  batiment  de  roi ;  autrement  assurance  nulle.  Une  fregate  chargee  de  mu- 
nitions de  guerre  pour  Algesiras,  se  trouvoit  a  VEstaque.  Le  navire  assure 
mit  a  la  voile  sous  les  auspices  de  cette  fregate,  que  lui  accorda  protection,  et 
qui  partit  en  meme  temps.  Consulte  sur  ce  cas,  je  fus  d'avis  que  si  le  navire 
etoit  pris  par  les  ennemis,  les  assureurs  seroient  fondes  a  refuser  le  payment  de 
la  perte;  car  autre  chose  est  d'etre  sous  I'escorte  d'un  batiment  du  roi,  et  autre 
chose  est  de  naviguer  simplement  sous  ses  auspices." 

Having  seen  what  shall  be  deemed  a  convoy.  Ictus  proceed  to  consider  what 
shall  be  a  departure  with  convoy  within  the  meaning  of  a  warranty  to  depart 
with  convoy. 

In  the  case  of  Lilley  v.  Ewer,  (b)  wliich  was  an  action  brought  against  an 
underwriter  for  a  return  of  premium.     The  policy  was  on  the  ship  the  Farker 


(b)  1  Bos.  «fe  Pull.  5.  (a)  See  post,  p.  700. 
(6)  Sittings  at  Guild,  after  Mich.  38  Geo.  3.     Park  Ins.  699. 

(c)  See  a  very  elaborate  judgment  of  Lord  Eldon  on  this  point  in  the  case  of  Anderson 
V.  Pitcher,  1  Bos.  &  Pull.  264. 

(a)   1  Emerigon,  p.  171.  (6)   1  Doug.  72. 

Vol.  VIL— a  2 


384  OF    NON-COMrLIANCE    WITH    WARRANTIES. 

Galley^  "at  and  from  Venice  to  the  Currant  Inlands,  and  at  and  from  tlicnce 
to  London,'''  at  a  premium  of  five  (jnineas  per  cent,  "to  return  two  per  cent, 
if  the  ship  sailed  with  convoy  from  Gibro/far,  and  arrived."  The  sliip  touched 
at  Gibraltar  on  her  way  home,  and  sailed  from  thence  under  convoy  of  the 
Zephyr  sloop  of  war,  but  the  convoy  was  destined  only  to  <^o  to  a  certain  lati- 
tude, about  as  far  as  Cape  Finisterre,  being  ordered  on  to  the  Lisbon  station ; 
and  accordingly  the  ship  and  convoy  separated,  and  the  ship  arrived  safe  at 
London.  The  only  question  in  the  case  was,  whether  by  the  terms  of  tlie 
policy,  the  condition  for  the  return  of  premium  was  a  departure  from  Gibral- 
tar with  such  convoy  as  could  be  met  with,  for  whatever  part  of  the  voyage 
that  might  happen  to  be,  or  a  departure  with  convoy  for  the  voyage?  The  trial 
came  on  before  Lord  Mansfield  and  a  common  jury,  when  a  verdict  was  found 
for  the  plaintiffs. 

*-^  ™^^  having  been  obtained  to  show  cause  why  there  should 
L    "  t>yy     J  jiQf  \^Q  ^  j^e^y  jj-ial ;  the  evidence  from  his  Lordship's  report  appeared 
to  be  thus: — That  the  plaintitTs  had  called  witnesses  (one  of  whom  was  Mr. 
Gorman,  an  eminent  merchant)  to  prove  that  for  some  years  past,  when  convoy 
for  the  voyage,  or  the  wliole  voyage  was  intended,  those  explanatory  words 
had  been  added,  and  that  by  this  usage,  the  expressions  of  "sailing  with  con- 
voy," and  "sailing  with  convoy  for  the  voyage,"  had  received  distinct  technical 
meanings  :   "with  convoy,"  signifying  whatever  convoy  the  ship  should  depart 
with,  whether  for  a  greater  or  less  part  of  the  voyage.      Several  policies  were 
also  produced,  which  had  been  filled  up  at  the  oilice  of  the  same  broker,  who 
had  prepared  that  which  had  given  occasion  to  this  cause,  in  which  the  words 
"for  the  voyage,"  or  "for  Ens^land,'''  were  added.     The  captain  proved,  that 
a,t  the  time  when  he  left  Gibraltar,  no  other  convoy  was  to  be  had.      The  wit- 
nesses for  the  defendant  swore,  that  they  understood  the  words  "with  convoy," 
to  mean,  convoy  for  the  voyage ;  and  the  broker  said,  that,  at  the  time  this 
policy  was  signed,  he  understood  and  apprehended  it  was  so  understood  by  all 
the  parties,  that  the  convoy  was  to  be  for  the  voyage,  and  that  the  return  was 
such  as  was  usual,  when  convoy  for  the  voyage  was  meant.      His  Lordship, 
after  stating  the  evidence,  said,  "That  when  the  case  was  opened,  he  thought, 
on  the  face  of  the  policy,  that  the  words  must  mean  for  the  voyage.      He  had 
not  admitted  the  counsel  to  ask  the  opinion  of  the  witnesses  on  the  construc- 
tion ;  but  to  learn  whether  there  was  any  usage  in  this  case,  which  Avould  give 
a  fixed  technical  sense  to  the  words.     This  was  a  question  of  fact  to  be  ascer- 
tained by  evidence,  and  proper  for  the  consideration  of  a  jury." 
The  case  was  fully  argued  at  the  Bar. 

Lord  Mansfield. — "On  the  words  I  was  strongly  of  opinion,  that  the  policy 
meant  the  departure  with  convoy  intended  for  the  voyage.     The  parties  could 
not  mean  a  departure  with  convoy,  which  might  be  designed  to  separate  from  the 
^  1  ^^^^P  *'"  ^  minute  or  two ;  though  when  convoy  for  the  whole  of 

L  J  a  voyage  is  clearly  intended,  an  unforeseen  separation  is  an  acci- 

dent, to  which  the  underwriter  is  liable ;  for  the  meaning  of  such  a  warranty 
is  not  that  the  ship  and  convoy  should  continue  and  arrive  together.  But  I  still 
think  that  the  evidence  was  properly  admitted  at  the  trial  of  this  cause ;  because 
the  sense  contended  for  by  the  plaintifls,  was  not  inconsistent  with  the  words 
of  the  policy,  and,  therefore,  it  was  material  to  see  what  the  usage  was.  I 
laid  great  stress  on  Mr.  Gorman's  testimony.  I  did  not  consider  him  as  a 
common  witness.  However,  it  seems,  from  what  1  have  heard  since,  that  the 
people  in  the  city  are  dissatisfied  with  the  verdict,  and  think  the  evidence  of 
the  plaintiff's  witnesses  was  founded  on  a  mistake.  Certainly  critical  niceties 
ought  not  to  be  encouraged  in  commercial  concerns ;  and  wherever  you  render 
additional  Avords  necessary,  and  multiply  them,  you  also  multiply  doubts  and 
criticisms.     It  may  be  hard,  because  words  have  been  added  in  some  instances, 


OF    NON-COMPLIANCE    WITH    WARRANTIES.  385 

to  force  a  construction  in  this  case,  from  the  omission  of  them.  Tlic  question 
is  of  great  importnnce." — The  rule,  therefore,  was  made  absolute,  («) 

Even  wlicre  the  ship  has  by  tempestuous  weather  been  prevented  from  join- 
ing the  convoy  at  all,  at  least,  of  receiving  the  orders  of  the  commander  of  the 
ships  of  war,  if  she  do  every  thing  in  her  power  to  effect  it,  it  shall  be  deemed 
a  sailing  with  convoy,  witliin  the  terms  of  the  warranty. 

In  the  case  of  llctorta  v.  Cfeeve,  [b)  the  plaintiff  had  insured  on  goods  in  the 
John  and  Jane,  from  Goftcnburg  to  /.ondon,  with  a  warranty  to  depart  with 
convoy  from  FIcckcry.  In  /?////,  1744,  the  ship  sailed  from  Gottenbicrg  to 
Flrckery,  and  there  she  waited  for  convoy  two  months.  On  the  21st  of  Sep- 
tember, at  nine  in  the  morning,  three  men-of-war,  who  had  one  hundred  mer- 
chant ships  in  convoy,  stood  off  Fleckery,  and  made  a  signal  for  the  ships  there 
to  come  out,  and  likewise  *sent  in  a  yawl  to  order  them  out.  There  p  ^^„,  -, 
were  fourteen  ships  waiting,  and  the  John  and  Jane  got  out  by  '-  J 

twelve  o'clock,  and  one  of  the  first :  the  convoy  having  sailed  gently  on,  and 
being  two  leagues  ahead.  It  was  a  hard  gale,  and  by  six  in  the  afternoon,  the 
ship  came  up  Avith  the  fleet:  but  could  not  get  to  either  of  the  men-of-war  for 
sailing  orders,  on  account  of  the  gale  of  wind.  It  w-as  stormy  all  night,  and 
at  day-break  the  ship  in  question  was  in  the  midst  of  the  fleet ;  but  the  weather 
was  so  bad,  that  no  boat  could  be  sent  for  sailing  orders.  A  French  privateer 
had  sailed  amongst  them  all  niirht :  and  it  being  foggy  on  the  22nd,  attacked  the 
John  and  Jane  about  two,  who  kept  a  running  fight  till  dark,  which  was 
renewed  the  next  morning,  when  she  was  taken.  For  the  defendant  it  was 
insisted,  that  this  ship  was  never  under  convoy,  nor  is  ever  considered  so,  tiU 
they  have  received  sailing  orders ;  and  if  the  weather  would  not  permit  the 
caplain  to  get  them,  he  should  have  gone  back. 

But  the  Chief  Justice  and  the  jury  were  of  opinion,  that  as  the  captain  had 
done  every  thing  in  his  power,  it  was  a  departing  with  convoy :  and  those 
agreements  are  never  confined  to  precise  words ;  as  in  the  case  of  departing 
with  convoy  from  London,  when  the  place  of  rendezvous  is  Spithead,  a  loss 
in  going  thither  is  within  the  policy.      So  the  plaintiff  recovered. 

But  it  is  evident  from  all  that  has  been  said,  that  if  there  be  an  opportunity 
of  convoy  ;  if  the  convoy  throw  out  repeated  signals  to  join  ;  and  by  the  negli- 
gence and  delay  of  the  captain  of  the  insured  ship,  the  opportunity  be  lost,  the 
warranty  to  depart  with  convoy  is  not  complied  with,  and  the  underwriter  is 
discharged. 

Thus  in  Taylor  v.  TVoodness,  (a)  which  was  an  action  on  *a  ^  s^aq  -i 
policy  of  insurance  tried  before  Lord  Mansfield,  the  plaintiff  was  •-  J 

nonsuited,  there  being  a  warranty  to  depart  with  convoy  :  and  it  appearing  from 
the  evidence,  that  the  commodore  of  the  convoy  had  made  signals  for  sailing 
from  Spithead  to  St.  Helenas  the  night  before,  and  had  made  repeated  signals 
the  next  morning  from  seven  o'clock  till  twelve,  notwithstanding  which,  the 
ship  insured  had  neglected  to  sail  with  him  and  did  not  sail  till  two  hours  after, 
in  consequence  of  which  she  was  taken  by  a  privateer. 

Although  we  have  thus  seen,  that  a  ship  must  not  voluntarily  depart  from 
convoy  during  the  voyage,  yet  this  species  of  w'arranty  must  always  be  con- 
strued with  reference  to  the  usage  of  trade,  and  to  the  orders  of  government. 
For  if  the  course  upon  a  particular  voyage  has  been  to  have  a  relay  of  convoy, 

(a)  The  new  trial  came  on  before  Lord  Mansfield  at  the  Sittings  after  Trin.  Term,  19 
Geo.  3,  when  the  verdict  was  found  for  the  defendant.      Doug.  74,  note  (7), 

{h)   2  Sir.  1250. 

(o)  Sit.  at  Guild.  Hil.  Vac.  4  Geo.  3.  Park  Ins.  707.  As  to  the  duty  of  the  officers 
appointed  for  convoy  to  merchant  ships,  see  it  prescribed  in  the  stat.  of  the  13  Car.  2,  stat. 
1,  c.  9,  art.  17;  which  regulations  were  confirmed  by  the  22  Geo.  2,  c.  33,  s.  2,  art.  17. 


386  OF    NON-COMPLIANCE    WITH    WARKANTIES. 

protecting  the  trade  from  one  port  to  another;  or  if  government  appoint  a  con- 
voy to  escort  the  trade  of  a  place  to  a  given  latitude  and  no  farther;  and  there 
be  no  other  convoy  on  that  station,  a  vessel,  taking  the  advantage  of  such  a 
convoy,  has  complied  with  the  warranty  to  sail  with  convoy  for  the  voyage. 

Thus  in  the  case  of  Smith  v.  Beacbfiaw,  (a)  which  was  an  insurance  on  the 
ship  William^  "at  and  from  London  to  Juniuka,''  warranted  to  depart  wilh 
convoy  for  the  voyage.  Lord  Mansfield,  in  the  course  of  his  summing  up  to 
the  jury,  said, — ''A  warranty  to  sail  with  convoy  means  with  such  a  convoy 
as  government  pleases  to  appoint;  and  whether  it  consists  of  separate  ships  at 
different  stations  or  not,  it  is  a  convoy  for  the  voyage ;  therefore  on  that  point 
there  is  no  doui)t. 

The  same  doctrine  was  held  by  TiOrd  Kenyan,  in  Dc  Gara/  v.  Claggetl,  {b) 
which  was  an  action  on  a  policy  of  insurance  at  and  from  Cadiz  to  Amster- 
dam, warranted  to  sail  with  convoy  for  the  voyage.  The  ships  insured  had 
r  *7n'i  1  sailed  from  Cadiz  under  a  Brilish  convoy ;  and  were  lost  before 
L  -J  they  "reached  die  Downs,  where  it  was  alleged  they  were  to  have 

taken  a  fresh  convoy  for  Amsterdam..  The  underwriters  insisted  that  the  con- 
voy should  have  been  direct  to  Amsterdam.  The  assured,  on  the  other  hand, 
contended,  that  all  convoy  must  be  according  to  usage,  and  that  in  many  voy- 
ages there  is  no  such  thing  as  a  direct  convoy,  I)ut  that  the  vessels  proceed  by 
relays  of  convoy  from  stage  to  stage.  The  special  jury,  with  Lord  Kenyon''s 
approbation,  gave  a  verdict  for  the  plaintids.  And  altliough  in  that  case,  it  is 
true,  the  underwriter  had  adjusted  the  policy  willi  full  knowledge  of  all  the 
circumstances,  which  his  Lordship  seemed  to  think  conclusive,  yet  there  were 
other  causes  on  the  same  policy,  where  there  was  no  adjustment;  and  upon 
Lord  Kenyan  and  the  jury  declaring  that,  without  considering  the  adjustment, 
they  thought  the  warranty  had  been  complied  with,  the  plaintiff  had  a  verdict, 
and  no  motion  was  ever  made  for  a  new  trial  in  any  of  these  causes. 

So  also  the  Court  of  Common  Pleas  decided  in  JXEguino  v.  Bewicke{c) 
which  was  an  action  on  a  policy  on  the  ship  Little  Betsey,  at  and  from  Zon- 
don  io  St.  Sebastian,  warranted  to  sail  with  convoy.  The  ship  sailed  with 
other  vessels  under  convoy  of  several  ships  of  war  :  and  after  a  certain  latitude, 
the  JVeazel,  one  of  die  men-of-war,  was  detached  to  convoy  the  Spanish 
ships  :  but  the  captain  of  that  ship  had  orders  to  go  with  the  St.  Sebastian 
ships  no  further  than  Bilboa,  and  in  fact  he  went  no  farther.  A  verdict  passed 
for  the  plaintiff.  When  die  case  came  on  before  the  Court  on  a  motion  for  a 
new  trial,  it  was  argued  for  the  underwriters,  that  warranties  are  to  be  stricdy 
complied  with;  and  that  however  near  the  jiort  of  St.  Sebastian  might  be  to 
Bilboa,  yet  the  principle  was  the  same ;  and  that  a  convoy  to  the  latter  place 
could  no  more  be  construed  to  be  a  convoy  to  the  former,  than  a  convoy  to  the 
Cape  of  Good  Hope  could  be  a  convoy  to  the  East  Indies,  and  for  this  was 
cited  Hibbert  v.  Pigoii.  [d) 

r  ^701  "1  *Mr.  Justice  Buller. — "The  case  of  Hibbert  v.  Figou  is  not 
L  J  applicable  to  this,  for  there  a  convoy  was  appointed  and  actually 

sailed  from  Jamaica  to  England;  as  to  the  instance  put  at  the  Bar  of  a  convoy 
to  the  Cape  of  Good  Hope,  I  entirely  differ  from  the  counsel  on  that  point; 
for  if  Government  thought  a  convoy  to  the  Cape  was  a  sufficient  protection  to 
the  East  India  trade,  and  the  usage  were  for  the  East  India  ships  to  sail  with 
a  convoy  only  to  the  Cape,  and  to  consider  tiiat  as  the  East  India  convoy, 
and  no  other  convoy  was  appointed  to  the  East  Indies,  I  should  hold  that  the 


(«)  London  Sittings  after  Easter,  1781.     Park  Ins.  708. 

(6)  London  Sittings  after  Mich.  1795.     Park  Ins.  708. 

(c)  2  H.  Black.  551.  (d)  Ante,  p.  693. 


OF    NON-COMPLIANCE    WITH    WARRANTIES.  387 

warranty  was  complied  with ;  though  I  agree,  if  there  was  another  convov  to 
the  East  Indies,  it  would  be  otherwise.  The  captain  of  a  merchant-ship" has 
nothing  to  do  with,  nor  can  he  know  the  instructions  from  the  Admiralty  to  the 
King's  ofhcers,  but  must  take  such  convoy  as  he  finds.  I  am,  therefore,  of 
opinion  tliat  there  is  no  ground  for  this  motion."     Rule  refused. 

III.  The  third  and  last  species  of  warranty  which  is  now  to  claim  our  atten- 
tion, is  that  of  neutrality.  This  differs  from  the  two  preceding  ones  in  this 
respect,  that  in?.srauch  as  in  the  former  the  policy  was  only  avoided  by  the 
breach,  but  in  this  case  if  the  warranty  is  not  complied  with,  the  policy  is  void 
in  the  commencement,  on  account  of  fraud.  We  saw  in  a  former  part  of  this 
section,  that  the  Judges,  in  the  case  of  Lothian  v.  Henderson,  [a)  had  no  doubt 
that  when  the  description  in  the  policy  in  that  case  was  "on  the  good  ship 
called  the  Catharine,'^  an  '•'-.^mericun  vessel,"  that  this  M-as  an  express  war- 
ranty that  she  was  an  American,  wliich  was  a  neutral  nation  in  the  war. 

Thus  in  Woolmer  v.  Mm/man,  (6)  on  a  special  case  reserved  for  the  opinion 
of  the  Court,  it  appeared  that  an  action  was  brought  for  the  recovery  of  a  total 
loss  on  a  policy  of  insurance  made  on  goods,  on  board  the  ship  Bona  Fortune. 
at  and  from  North  Bergen  to  any  ports  or  places  whatsoever,  until  her  safe 
arrival  in  Zon(7o??,  "warranted  neutral  ship  and  ^property."  The  p  ^-yn-  T 
ship,  with  the  goods  so  being  on  board  her,  after  her  departure  L  '  ^  J 
from  Xorth  Bergen,  and  before  her  arrival  at  London,  proceeding  on  her 
voyage,  was,  by  force  of  the  winds  and  stormy  weather,  wrecked,  cast  away, 
and  sunk  in  the  seas,  and  the  said  goods  M'cre  thereby  wholly  lost.  The  ship 
called  Z«  Bo)2a  Fortuna,  at  and  before  the  time  she  was  lost,  was  not  neutral 
property,  as  warranted  by  the  said  pohcy.  The  question  was,  whether  under 
such  circumstances  the  plaintiff  could  recover.^  Lord  Mansfield,  after  hearing 
counsel  for  the  plaintiff,  stopped  those  for  the  defendant,  saying,  the  point  was 
too  clear  to  be  argued.  There  was  a  falsehood  with  respect  to  the  thing 
insured,  for  he  insured  neutral  property  when  it  was  not  so,  therefore  there  is 
no  contract.      We  must  give  judgment  for  the  defendant. 

And  in  the  case  of  Tabbs  v.  Bendleback  {c)  it  was  held,  that  an  American 
by  birth,  who  has  resided  for  some  years  with  his  family  in  England,  thoucrh 
himself  has  been  occasionally  in  America,  is  so  far  to  be  considered  as  a 
British  subject,  that  if  a  ship  of  his  be  warranted  American  property  it  is  not 
to  be  deemed  so,  though  the  vessel  was  built  in  America  and  registered  there, 
and  such  a  plaintiff  in  an  action  upon  a  policy  of  insurance  was  nonsuited. 

The  plaintiffs  in  the  case  of  Eden  and  another  v.  Parkinson,  {d)  insured 
the  ship  the  Yoiige  Herman  Hiddinga,  and  her  cargo,  "at  and  from  V Orient 
to  Rotterdam,  warranted  a  neutral  ship  and  neutral  property."  The  ship 
being  captured  in  the  course  of  her  voyage  by  some  English  men-of-war,  the 
plaintiffs  brought  this  action  against  the  defendant,  one  of  the  underwriters  on 
the  policy,  stating  in  their  declaration,  that  the  defendant  subscribed  the  policy 
on  the  28lh  of  November,  1780,  and  averring  that  the  ship  and  cargo  were  at 
that  time  neutral  property.  The  trial  came  on  before  Lord  Mansfield  at  Guild- 
hall, when  a  verdict  y/as  found  for  the  plaintiffs,  subject  to  the  opinion  of  the 
Court  upon  a  case  stating,  that  *the  ship  in  question  sailed  from  p  ^-'aa  "l 
U  Orient,  on  the  voyage  insured,  on  the  11th  o{  December,  1780,  L       '  J 

having  the  insured  cargo  on  board,  and  both  the  ship  and  cargo  were  neutral 
property  at  the  time  of  the  ship's  departure  from  L*  Orient,  and  so  continued 
until  the  20th  oi  December,  1780,  on  which  day  hostilities  having  commenced 

(a)  3  B.  &  P.  499,  ante,  p.  664.  (b)  4  Burr.  1419;   1  Black.  427. 

(c)  4  Esp.  108,  and  3  Bos.  &  Pull.  207,  note  S.  C. 
Id)  Doug.  732. 


388  OF    NON-COMPLIANCE    WITH    WARRANTIES. 

between  the  English  and  the  Dutch,  the  Dutch  ceased  to  be  a  neutral  power, 
and  the  ship  and  cargo  ceased  to  be  neutral  property.  Tliey  were  taken  on 
the  25th  of  December,  1780,  and  condemned  as  lawful  prize,  in  the  Admiralty 
Court,  on  the  19th  of  February,  1781. 

Lord  Mansfield. — "Many  points  have  been  gone  into  in  the  argument  on 
both  sides  at  the  Bar,  which  are  not  necessary  for  the  decision  of  this  case. 
For  instance,  there  is  no  doubt  but  you  may  warrant  a  future  event.  But  the 
single  question  here  is,  what  is  the  meaning  of  this  policy  }  I  had  not  a  par- 
ticle of  doubt  at  the  trial,  and  I  know  the  jury  had  none;  but  Mr.  Lee  pressed 
for  a  case,  and  I  granted  one  out  of  respect  to  him.  What  is  the  case?  It  is 
an  insurance  upon  a  ship  and  her  cargo,  at  and  from  V  Orient  to  Rotterdam. 
The  insured  warrant  them  neutral,  and  the  defendant  would  have  the  Court  to 
add,  by  construction,  'and  so  shall  continue  during  the  whole  voyage.'  The 
contract  is  not  so.  The  insured  tell  the  state  of  the  ship  and  goods  then,  and 
the  insurers  take  upon  themselves  all  future  events  and  risks,  from  men-of-war, 
enemies,  detention  of  princes,  &c.  The  parties  themselves  could  not  have 
changed  the  nature  of  the  property ;  but  they  did  not  mean  to  run  the  risk  of 
the  war.  If  it  made  a  difference  what  country  the  property  belonged  to,  the 
underwriters  should  have  inquired.  The  risk  of  future  war  is  taken  by  the 
imderwriter  of  every  policy.  By  an  implied  warranty  every  ship  must  be 
tight,  staunch,  and  strong ;  but  it  is  sufficient  if  she  shall  be  so  at  tlie  time  of 
her  sailing.  She  may  cease  to  be  so  in  twenty -four  hours  after  her  departure, 
and  yet  the  underwriter  will  continue  liable.  The  case  of  Lilly  v.  Ewer,  (d) 
p  *7n7  -]  turns  quite  the  other  way.  The  decision  *there  was,  that  the  ship 
L  -J  must  sail  with  convoy,  according  to  the  usage  of  the  trade ;  that 

is,  convoy  destined  to  go  as  far  as  usual  in  that  voyage.  The  present  is  the 
clearest  case  that  can  be.  The  warranty  is,  that  things  stand  so  at  the  time,  not 
that  they  shall  continue." 

The  postea  was  delivered  to  the  plaintiffs. 

And  afterwards  in  a  subsequent  case  of  Saloucci  v.  Johnson,  (a)  in  the 
course  of  the  argument  Mr.  Justice  Bidler  said,  "I  do  not  agree  with  the 
counsel,  who  contend,  that  the  property  must  continue  neutral  during  the  whole 
voyage ;  if  it  be  neutral  at  the  time  of  sailing,  and  a  war  break  out  the  next 
day,  the  underwriter  is  liable." 

And  in  a  still  later  case  of  Tyson  v.  Gurney,  (b)  which  came  on  for  trial 
before  Lord  Kenyan  at  Guildhall,  this  point  was  one  amongst  others  saved  for 
the  opinion  of  the  Court  of  King's  Bench.  But  when  the  case  came  on  to  be 
argued,  the  counsel  for  the  defendant  abandoned  the  objection  upon  the  author- 
ity of  Eden  v.  Parkinson,  and  Saloucci  v.  Johnson. 

I  now  propose  to  consider  the  important  question  which  has  met  with  much 
discussion,  viz :  how  far  the  Courts  of  Law  in  this  country  have  held  the  sen- 
tences of  foreign  Courts  of  Admiralty,  to  be  conclusive  evidence  that  the  pro- 
perty was  not  neutral;  so  as  to  discharge  the  underwriters.^  and  I  shall  first 
refer  to  some  important  cases  decided  in  the  Court  of  Admiralty  on  this  point. 

The  first  case  which  I  shall  mention  is  that  of  "The  Flad  Oyen,  Martenson, 
master,"  in  which  judgment  was  delivered  in  the  High  Court  of  Admiralty, 
January  16th,  1799.  (c)  This  was  the  case  of  an  English  prize  ship  carried 
into  a  neutral  country  and  there  sold  under  the  sentence  of  condemnation  by 
the  French  consul,  and  taken  the  12th  January,  1798.  The  claim  was  given 
on  behalf  of  the  purchaser  a  Danish  merchant.  For  the  claitjiant  it  was  con- 
tended that  there  was  nothing  illegal  in  a  sentence  of  condemnation  in  a  neutral 

{d)   Vide  ante,  p.  698.  (a)  See  ante,  p.  307,  s.nA  post. 

lb)   3  T.  R.  477.  (c)   1  Rob.  A.  R.  134. 


OF    NON-COMPLIANCE    WITH    WARRANTIES.  389 

^country,  into  which  the  captors  had  carried  the  prize  ship :  and  r-  ^ 
they  quoted  books  of  authority  on  this  point,  (or)  Sir  W.  Scott  L  '^^  J 
now  deUvered  judgment.  "•This  is  the  case  of  a  ship  taken  by  a  French 
privateer  and  carried  into  Bergen  in  Norway,  where  it  appears  she  underwent 
a  sort  of  process,  which  terminated  in  a  sentence  of  condemnation,  pronounced 
by  the  French  consul ;  and  under  that  sentence  she  is  asserted  to  have  been 
transferred  to  the  present  neutral  proprietor.  The  sale  was  conducted  by  public 
auction  ;  but  it  appears  that  the  very  person  who  was  the  purchaser  in  that  case, 
was  likewise  the  actual  seller,  and  stood  in  the  capacity  of  general  agent,  at 
this  place,  for  the  French  nation.  She  was  put  up  to  auction,  there  was  no 
bidder  whatever,  and  she  was  purchased  by  himself  under  the  denomination  of 
agent.  It  appears  that  the  ship  was  sent  immediately  to  France,  which  of 
itself  colours  the  nature  of  the  purchase,  and  shews  that  it  could  not  be  for  a 
mere  Bane,  and  for  Banish  commerce ;  but  on  behalf  of  persons  resident  in 
France.  It  appears,  likewise,  that  he  sent  this  vessel  with  papers  for  the 
island  of  St.  Martins;  but  in  fact,  gave  verbal  directions  to  the  master  to  get 
her  into  the  port  of  Havre,  if  he  possibly  could.  From  the  depositions  of  the 
master,  I  think  it  was  entirely  with  the  knowledge  of  the  pretended  purchaser 
that  that  was  a  blockaded  port,  and  that  there  has  been  a  fraudulent  intention  to 
break  the  blockade,  which  was  at  the  time  actually  existing.  Under  these 
circumstances,  I  am  of  opinion,  that  this  does  amount  to  that  fraudulent  con- 
duct on  the  part  of  the  purchaser :  which  would  debar  him  from  the  advantage 
of  further  proof.  I  am  of  opinion  that  it  was  no  actual  transfer  but  was  going 
to  France,  as  the  property  of  the  French  captors  to  be  put  into  their  possession, 
and  therefore,  on  that  part  of  the  case  I  should  have  little  doubt  in  pronouncing 
a  sentence  of  condemnation. 

But  another  question  has  arisen  in  this  case  upon  which  a  great  deal  of  argu- 
ment has  been  employed,  viz  :  whether  the  *sentence  of  condem-  p  $700  n 
nation  which  was  pronounced  by  the  French  consul  is  of  such  L  J 

legal  authority  as  to  transfer  the  property,  supposing  the  purchase  bond  Jide 
made.^  I  apprehend  that  the  general  practice  of  the  law  is,  that  a  sentence  of 
condemnation  is  at  present  deemed  necessary,  and  that  a  neutral  purchaser  in 
Europe  during  war,  looks  to  the  legal  sentence  of  condemnation  as  one  of  the 
title  deeds  of  the  ship,  if  he  buys  a  prize  vessel.  I  believe  there  is  no  instance 
in  Avhich  a  man  having  a  prize  vessel  of  a  belligerent  has  thought  himself  quite 
secure,  merely  because  the  ship  has  been  in  the  enemy's  possession  '  twenty- 
four  hours,'  or  carried  ^ infra  presidia.^  The  contrary  has  been  more  gene- 
rally held ;  and  the  instrument  of  condemnation  is  amongst  those  documents 
which  are  most  universally  produced  by  a  neutral  purchaser,  and  if  she  has 
been  taken  as  prize,  it  should  appear  that  she  has  been  in  a  proper  judicial 
form,  subject  to  adjudication.  Now  in  what  form  have  these  adjudications 
constantly  appeared.^  They  are  the  sentences  of  Courts  acting  and  exercising 
their  functions  in  the  belligerent  country ;  and  it  is  for  the  first  time  in  the 
world  that  in  the  year  1799,  an  attempt  is  made  to  impose  upon  the  Court  a 
sentence  of  a  tribunal  not  existing  in  the  belligerent  country,  but  of  a  person 
pretending  to  be  authorized  within  the  dominions  of  a  neutral  country.  Now, 
it  having  been  the  constant  usage  that  the  tribunals  of  the  law  of  nations  shall 
exercise  their  functions  in  the  belligerent  country  $  if  it  was  proved  to  me  in 
the  clearest  manner,  that  on  mere  general  theory  such  a  tribunal  might  act  in 
the  neutral  country :  I  must  take  my  stand  on  the  ancient  and  universal  prac- 
tice of  mankind,  and  say  that  so  far  as  that  practice  has  gone,  I  am  willing  to 
go;  and  where  it  has  thought  proper  to  stop,  there  must  I  stop  likewise. — I 

(a)  Cons.  Del.  Mare.  287.     Vattel,  b.  iii.  c.  7,  s.  133. 


390  OF    NON-COMPLIANCE    WITH    WARRANTIES. 

am  of  opinion  upon  the  whole,  that  this  ship  must  be  restored  to  the  British 
owners  upon  the  usual  salvage." 

And  in  the  case  of  The  Christopher,  (a)  in  which  a  British  prize  ship  taken 
r  *7in  "I  '^y  ^'^^  French,  and  carried  into  the  Spanish  *port  <S7.  Sebastian; 
L  J  from  whence  the  ship's  papers  were  sent  to  France,  and  a  sentence 

of  condemnation  passed  at  Bayonne,  May  9th,  the  ship  still  lying  in  the 
Spanish  port.  The  ship  was  then  sold  to  the  present  claimant,  a  merchant  of 
Altona;  and  was  sailing  at  the  time  of  the  capture,  July,  1799,  in  ballast 
from  St.  Sehuslian  to  Miona.  On  the  part  of  the  ca])tors  it  was  contended 
that  this  was  a  purcliase,  resting  on  an  illegal  condemnation,  and  therefore 
could  not  transfer  any  right  or  just  tide  to  the  neutral  claimant. 

Sir  W.  Scott  now  delivered  judgment.— "This  is  a  case  materially  differing 
from  those  in  which  condemnation  has  passed  on  ships  carried  into  a  neutral 
country ;  Uiose  proceedings  have  been  held  illegal,  principally  because  it  was 
to  be  presumed  that  a  neutral  government  would  not  so  far  depart  from  the 
duties  of  neutrality,  as  to  permit  the  exercise  of  that  last,  and  crowning  act  of 
hostility,  the  condemnation  of  the  property  of  one  belligerent  to  the  other. 
But  this  will  not  hold  good  with  respect  to  condemnations  passed  on  ships 
brought  into  the  ports  of  an  ally  in  the  war.  In  such  cases  there  is  nothing 
to  prevent  the  government  proceeding  to  that  last  act  of  hostility ;  there  is  a 
common  interest  between  them  on  the  subject ;  and  both  governments  may  be 
presumed  to  authorize  any  measures  conducing  to  give  effect  to  their  arms; 
and  to  consider  each  other's  ports  as  mutually  subservient.  I  am,  therefore, 
inclined  to  hold  such  a  condemnation  sufficient  in  regard  to  property  taken  in 
the  course  of  a  common  war."     Ship  restored. 

In  the  case  of  the  Betsy,  {b)  12th  Jlugnst,  1800,  which  was  a  case  under 
circumstances  precisely  similar,  the  question  of  law  was  waived,  and  the  legal- 
ity of  the  condemnation  being  admitted  by  the  Court,  further  proof  was  directed 
to  be  made  of  the  fact  of  transfer.  The  principles  laid  down  by  the  learned 
Judge  of  the  Court  of  Admiralty,  are  agreeable  to  the  decisions  of  the  Courts 
of  Law  upon  the  subject. 

P  ^„ , ,  -1  In  the  case  of  Donaldson  v.  Thompson,  (c)  which  was  an  action 
•-  J  *on  a  policy  of  insurance  on  the  American  ship  Maryland  Mary, 

at  and  from  Gibraltar  to  a  market,  with  leave  to  call  and  land  goods  at  two  or 
more  ports  in  the  Mediterranean.  The  ship  having  landed  some  goods  at 
Malta,  proceeded  thence  with  the  rest  of  her  cargo  for  Smyrna,  but  was  the 
same  day  captured  by  a  Russian  privateer,  and  being  afterwards  carried  into 
Corfu,  was  there  condemned  as  lawful  prize.  The  sentence  of  condemnation 
was  pronounced  at  Corfu,  in  July,  1807.  The  condition  of  Corfu  in  that  year 
and  monUi,  was  described  by  a  genUeman  who  had  acted  there  as  an  English 
consul.  He  stated  that,  at  that  time  there  was  a  Russian  garrison  in  Corfu, 
and  the  Russians  had  about  6,000  men  in  the  difTerent  islands  of  the  republic; 
that  they  had  made  Corfu  a  military  station  for  four  years,  and  they  continued 
m  possession  of  it  till  they  delivered  it  up,  at  the  peace  of  Tilsit,  to  Bona- 
parte :  but  that  previously  to  that  event,  the  flag  of  the  Ionian  Republic  flew 
from  the  forts  in  the  island;  there  was  a  Port-Admiral  appointed  by  tlie  Ionian 
Republic,  and  the  witness  was  recognized  as  English  consul  by  Prince  and 
Senate  of  the  Ionian  Republic,  who  continued  his  functions  till  the  Republic 
was  dissolved  l^y  the  French.  Lord  Ellenborough. — "I  shall  not  receive  the 
sentence."  Under  these  circumstances  the  Russians  must  have  been  consid- 
ered visitors  in  Corfu,  and  not  as  sovereigns.     While  a  government  subsists 

(a)  2  Rob.  A.  R.  210.  {h)  Note,  2  Rob.  210. 

(c)    1  Camp,  428. 


OF    NON-COMPLIANCE    WITH    WARRANTIKS.  391 

as  this  did,  we  cannot  look  to  the  deoree  in  wliicli  it  mij^ht  be  overawed  by  a 
foreign  force.  The  sentence  was  pronounced  by  a  bellitrerent  on  neutral  terri- 
tory, and  is  therefore  void,  I  am  by  no  means  disposed  to  extend  the  comity 
which  has  been  shewn  to  these  sentences  of  Foreign  Admiralty  Courts.  I  shall 
die,  like  Lord  TJnrrlmc,  in  the  belief  that  they  ought  never  to  have  been 
admitted.  The  doctrine  in  their  favour  rests  upon  an  authority  in  Shoiver,  {d) 
which  does  not  fully  support  it:  and  the  practice  of  receiving  them  often  leads 
to  great  injustice.  In  the  ensuing  Term  a  motion  was  made  to  set  the  verdict 
aside,  *(which  had  been  found  for  the  plaintiff,)  a  rule  niai  was  r  ^.yio  "i 
granted  :  but.  cause  being  shewn,  it  was  discharged.     His  Lord-  ^  -^ 

ship  said,  "-It  is  impossible  to  say  die  government  of  the  Ionian  Republic  was 
superseded,  at  a  time  when  its  institutions  subsisted,  and  its  supremacy  was 
recognized.  How,  then,  was  Corfu  a  co-belligerent,^  Only  because  it  endured 
a  hostile  aggression." 

\\\  the  case  of  Havelock  v.  Rockwood,  (a)  it  was  held  by  the  Court  of  King's 
Bench,  that, a  sentence  of  condemnation  of  a  Br'ifish  ship  (which  had  been 
captured  by  a  French  privateer  and  carried  into  Bergen  in  Norway)  by  the 
French  consul  at  Bergen  was  an  illegal  sentence;  and  that  Avhere  the  owner 
after  such  a  sentence  repurchased  his  ship  at  a  public  auction  at  Bergen,  he 
could  not  recover  the  money  so  paid  by  him  from  the  underwriter,  such  a  con- 
tract is  a  ransom  and  illegal,  (void  at  diat  period  by  45  Geo.  3,  c.  72,  now 
expired. ) 

Lord  Kenyan. — ''I  need  not  say  much  on  the  first  point  respecting  the  sen- 
tence of  the  supposed  court  at  Bergen:  a  question  that  affects  all  commercial 
states,  because  that  point  has  so  lately  been  solemnly  decided  by  Sir  IV.  Scott, 
who  determined  on  grounds  that  will  recommend  the  decision  to  all  those  who 
fill  a  judicial  situation.  And  I  can  only  add,  that  I  most  perfecdy  concur  in 
the  opinion  there  given."  [b) 

But  in  the  case  of  Oddy  v.  Bovill,  (c)  it  was  held  that  a  sentence  of  con 
demnation,  of  a  prize  taken  by  a  French  privateer  and  carried  into  Spain,  by 
a  French  Court  sitting  there  [Spain  then  being  a  belligerent  ally  of  France  in 
the  war  against  Great  Britain)  was  valid ;  and  such  condemnation  proceeding 
on  the  ground  of  the  properly  being  enemy's  and  British,  was  conclusive  in 
an  action  on  a  policy  against  the  underwriter  by  the  assured  who  has  insured 
as  Banish,  as  it  was  in  fact,  Denmark  then  being  neutral. 

In  the  case  of  Bernardi  v.  Motteux,  (d)  which  was  an  insurance  p  ^^.  „  -i 
*"on  the  ship  *Jane,^  warranted  neutral  ship  and  property,"  it  L  -^ 

was  held  that  the  sentence  of  a  French  Court  of  Admiralty  which  stated  that 
"the  captured  ship  was  on  her  voyage  to  an  enemy's  port  with  goods  consigned 
to  persons  there,  though  stated  in  the  bills  of  lading  to  belong  to  neutrals :  and 
there  being  reason  to  suspect  that  the  captain  had  thrown  his  papers  overboard, 
therefore,  the  ship  and  cargo  was  condemned  as  prize,"  this  being  ambiguous, 
and  there  being  reason  to  suppose  that  the  ground  of  the  sentence  was  the 
throwing  the  papers  overboard,  contrary  to  a  French  ordinance,  not  to  be  con- 
clusive evidence  to  falsify  the  warranty. 

But  where  it  appears,  without  a  possibility  of  doubt,  that  the  sentence  pro- 
ceeded on  the  ground  that  the  property  'not  being  neutral,'  it  is  conclusive  evi- 
dence against  the  assured  that  he  has  not  complied  with  the  warranty.  This 
was  fully  settled  in  the  case  of  Barzillay  v.  Lewis,  [a) 

(d)  Hughes  v.  Cornelius,  2  Show.  232.  («)  8  T.  R.  268. 

(//)  The  Flad  0.yen,  1  Rob.  A.  R.  135.     Aitte,  p.  707. 
(c)  2  East,  473."  (r/)  Doug.  575. 

(a)  B.  R.  Trin.  Term,  22  Geo.  3.  Park  Ins.  725.  And  see  Baring  v.  Claggett,  3  Bos. 
&  Pull.  201,  and  Baring  v.  Christie,  5  East,  398.     Ace. 


392  OF    NON-COMPLIANCE    WITH    WARRANTIES. 

It  was  an  action  on  a  policy  of  insurance  on  a  ship  from  Liverpool  to  Am- 
sterdam, warranted  Dutch  property ;  and  it  was  brought  to  recover  for  a  total 
loss,  the  ship  havincj  been  captured  by  the  French,  and  condemned  l)y  the 
Court  of  Admiralty  there.  The  plaintiff  (the  insured)  was  nonsuited  in  this 
action,  from  an  idea,  that  the  decree  of  the  Parliament  of  Paris  was  decisive 
against  him,  that  he  had  not  complied  with  his  warranty.  Upon  a  motion  to 
set  aside  this  nonsuit,  the  following  facts  appeared  from  the  report  of  the  Judge 
who  tried  the  cause.  The  ship  in  question  was  originally  a  French  privateer 
called  IjAimahle  As;athee,  which  was  taken  by  an  English  privateer,  and 
carried  into  Liverpool,  condemned  in  England,  and  she  then  got  the  name  of 
The  Three  Graces.  A  merchant  at  Liverpool  afterwards  bought  her  for  a 
house  at  Amsterdam,  and  a  passport  was  sent  for  her  from  thence.  She  was 
then  insured  by  a  Dutch  name,  and  warranted  as  in  the  policy ;  she  went  to 
p  *7i4  -I  sea,  was  captured  *by  a  French  ship,  and  carried  into  St.  Maloes, 
L  J  where  she  was  released  by  the  Vice  Admiralty  Court  as  being 

Dutch.  But  upon  an  appeal  to  tlie  Parliament  of  Paris,  the  ^^entence  was 
reversed,  and  she  was  comdemned  as  lawful  prize,  by  the  name  of  The  Three 
Graces  of  LJverpool.  It  appeared  in  evidence,  that  there  were  certain  French 
ordinances,  which  ordain,  that  wliere  more  than  one-third  of  the  crew  of  a 
neutral  ship  are  enemies  to  the  King  of  France,  the  ship  shall  be  confiscated  : 
that  no  ship  shall  be  considered  as  transferred,  till  she  has  been  within  the  port 
of  the  purchaser ;  and  that  a  passport  shall  be  deemed  fraudulent,  unless  the 
ship  has  been  in  the  port  from  whence  it  has  been  obtained.  The  ship's  crew 
in  question  consisted  of  sixteen,  five  of  whom  were  French,  four  were  Danes, 
two  were  Stvedes,  one  was  Dutch,  one  Portuguese,  one  Hamburgher,  one 
Norivegian,  and  one  Irishman.  Some  of  the  crew  swore,  that  they  were 
hired  by  Englishmen,  and  that  both  the  ship  and  the  cargo  were  English. 
They  also  swore  that  when  the  ship  which  took  them  came  in  sight,  the  captain 
sailed  back  towards  the  English  coast :  but  one  of  the  crew  having  informed 
him  that  the  ship  in  sight  carried  English  colours,  he  resumed  his  course. 

Lord  Mansfield. — "The  sentence  of  the  Court  of  Appeal  in  France  is  con- 
clusive. The  question  is,  What  that  sentence  means  .^  She  is  condemned  as 
not  being  a  Dutch  ship.  The  warranty  is,  that  she  is  Dutch,  which  is  false. 
The  law  of  nations  is  founded  on  eternal  principles  of  justice;  and  in  every 
war  the  belligerent  powers  make  particular  regulations  for  themselves.  But  no 
nation  is  obliged  to  lie  bound  by  them,  unless  they  are  agreeable  to  the  general 
laws  of  nations ;  but  all  third  persons  and  mercantile  people  are  bound  to  take 
notice  of  them  for  their  own  safety.  In  this  case,  the  plaintiffs  warrant  this 
ship  to  be  Dutch;  and  they  must  see  that  she  is  in  such  a  state  as  to  be  enti- 
tled to  all  privileges  of  neutral  property.  The  insurers  took  the  risk  upon  this 
warranty :  she  was  insured  by  her  Dutch  name,  and  the  underwriters  take  it 
p  ^_,,  p.  -|  for  granted  that  she  is  so  :  but  *whcn  the  matter  is  sifted  in  France, 
L  -^  she  appears  to  have  none  of  the  requisites  to  shew  she  was  neutral 

property,  for  she  had  never  been  in  a  Dutch  port,  and  the  sea-brief  or  pass- 
port was  not  conformable  to  the  treaty  of  Utrecht.  The  Parliament  of  Paris 
did  not  condemn  her  as  the  Dutch  ship  of  Amsterdam  by  her  Dutch  name : 
but  as  '■'•The  Three  Graces  of  Liverpool.''^  Indeed  she  had  none  of  the 
requisites  of  a  Dutch  ship ;  and  the  regulations  require  that  she  should  have 
been  into  the  port  of  the  purchaser,  in  order  to  transfer  the  property ;  the  know- 
ledge of  all  which  circumstances  the  insured,  by  his  warranty,  took  upon  him- 
self.    I  am,  therefore,  of  opinion,  that  the  warranty  was  false." 

The  rule  to  set  aside  the  nonsuit  was  accordingly  discharged. 

It  has  also  been  determined,  that  where  no  special  ground  at  all  is  stated : 
but  the  ship  is  condemned  generally  as  good  and  lawful  prize,  the  Court  here 
must  consider  it  as  conclusive  evidence  that  the  property  was  not  neutral,  and 


OF    NON-COMPLIANCE    WITH    WARRANTIES.  393 

will  not  again  open  the  proceedings  of  the  Court  abroad  in  favour  of  the  party, 
who  has  warranted  his  properly  to  be  neutral. 

An  action  in  the  case  of  Saloucci  v.  Woodmas  (a)  was  brought  upon  a 
policy  of  insurance  on  goods  warranted  neutral  on  board  the  Thetis,  a  Tuscan 
ship,  to  recover  the  amount  of  the  insurance  from  the  underwriters.  The  ship 
had  been  taken  in  the  course  of  her  voyage  by  a  Spanish  vessel,  carried  into 
Spain,  and  her  cargo  was  there  condemned  "as  good  and  lawful  prize." 
There  was  an  appeal  to  a  superior  Court,  which  reversed  the  sentence :  but 
upon  a  further  appeal,  the  latter  decision  was  overturned,  and  the  former  con- 
firmed. At  the  trial  of  this  cause  before  Lord  Mansfield,  his  Lordship  being 
of  opinion  that  the  sentence  of  the  Spanish  Court  of  Admiralty  was  conclusive 
evidence  of  the  falsehood  of  tlie  plaintilf's  warranty,  the  plaintiff  was  non- 
suited. A  motion  was  made,  and  fully  argued,  to  set  aside  the  nonsuit,  which 
was  unanimously  refused  by  the  whole  Court  of  King's  Bench. 

*Lord  Mansfield. — "The  policy  here  warrants  that  this  cargo  r-  ^,yi(>  -i 
was  neutral  property.  It  appears  from  the  policy  itself,  that  the  L  '  "  J 
ship  was  neutral,  because  it  is  called  a  Tuscan  ship :  but  the  warranty  is  that 
the  goods  are  neutral.  It  must  be  presumed  from  the  condemnation,  as  no 
other  cause  appears,  that  it  proceeded  on  the  ground  of  the  property  belonging 
to  an  enemy.  In  the  case  of  Bernardi  v.  Motteux,  the  decision  of  the  Court 
turned  upon  the  particular  ground  of  the  confiscation  appearing  on  the  face  of 
the  sentence ;  and  that  it  did  not  appear  to  be  on  the  ground  of  being  enemy's 
property.  This  being  so,  the  Court  gave  the  party  an  opportunity  to  shew  by 
evidence,  that  the  specific  ground  was  really  the  cause  of  condemnation.  In 
this  ease,  at  Guildhall,  the  counsel  admitted  the  general  rule,  but  they  said,  if 
a  copy  of  the  proceedings  could  be  had,  a  special  cause  would  appear.  The 
proceedings  are  now  come ;  and  from  them  it  appears,  that  the  question  turned 
entirely  upon  the  property  of  the  goods.  For  in  the  second  Court,  to  which 
they  appealed  from  the  sentence  of  the  first,  the  question  was,  whether  the 
goods  were  free.^  the  decree  was,  that  they  were.  But  the  third  Court  over- 
turned the  decision  of  the  second.  It  is  sufticient,  however,  that  no  special 
ground  is  stated;  and  therefore  the  rule  must  be  discharged." 

And  in  the  case  of  Geyer  v.  Aguilar,  [b)  if  a  foreign  Court  of  Admiralty 
condemns  a  ship  (warranted  ^^merican)  as  enemy's  property,  for  not  having  on 
board  a  role  d'' equipage  or  list  of  the  crew,  which  is  requiied  by  a  French 
ordinance  to  be  on  board  the  ship,  and  which  the  Court  of  Admiralty  adjudged 
to  be  requisite  within  the  meaning  and  construction  of  the  treaty  between  the 
two  countries  of  France  and  Jlmerica,  the  Court  of  King's  Bench  held  that 
the  adjudication  in  France  was  conclusive  against  the  warranty,  that  she  was 
an  American  ship,  though  in  fact  she  was  so,  that  point  being  clearly  within 
the  jurisdiction  of  the  foreign  Court. 

And  where,  as  in  the  case  of  Rich  v.  Parker,  (c)  there  *has  p  ^^,_  -. 
been  no  sentence  of  condemnation,  if  a  ship  is  warranted  American,  ^  J 

and  sails  without  such  a  passport,  as  is  required  by  the  treaty  between  France 
and  America,  the  warranty  is  not  complied  with,  and  the  underwriters  are  dis- 
charged ;  even  though  the  ship  suffers  no  inconvenience  from  the  want  of  it. 
Such  a  warranty  does  not  mean  merely  that  the  ship  is  American  property, 
but  that  she  is  entitled  to  all  the  privileges  of  an  American  flag. 

But  in  Christian  v.  Secretan  {d)  where  there  was  no  warranty  of  being 
American,  a  sentence  adjudging  a  ship  to  be  good  prize,  as  belonging  to  the 
enemies  of  the  Republic,  negatives  no  fact,   which  it  was  incumbent  on  the 

(a)   B.  R.  24  Geo.  3.    Park  Ins.  727.  (/y)  7  T.  R.  681. 

(c)  7  T.  R.  703.  {(1)  8  T.  R.  192. 


394  OF    NON-COMPLIANCE    WITH    WARRANTIES. 

assured,  having  made  no  warranty,  to  establisli ;  for  the  Enp^lhh  Courts  are 
only  bound  by  the  decretory,  or  conchiding  part  of  the  sentence,  and  wliere 
the  adjudication  is  on  the  ground  of  enemy's  property,  are  not  bound  to  examine 
the  premises  tliat  lead  to  the  conclusion.  If,  indeed,  there  had  been  a  war- 
ranty, the  adjudication  that  it  was  enemy's  property  would  have  been  conclu- 
sive against  such  a  warranty. 

In  the  case  of  Dawson  v.  Jltty,  (e)  where  goods  were  insured  on  board  the 
Hermon,  without  any  addition  of  country  or  place,  and  not  represented  to  be 
of  any  particular  country  at  the  time  of  subscribing  the  policy,  although  the 
broker,  when  the  slip  was  subscribed,  had  said  she  was  an  Jlincrican,  it  was 
held  that,  though  she  was,  in  fact,  an  American,  she  need  not,  under  these 
circumstances,  be  documented  as  such  to  entitle  the  assured  to  recover  against 
the  underwriters  for  a  loss  by  capture,  and  subsequent  condemnation,  for  want 
of  tlie  documents  required  by  treaty  between  her  own  and  the  capturing  state; 
for  she  was  neither  insured  as  American,  nor  represented  to  be  such  at  the 
time  when  the  policy  was  affected,  though  her  being  so  was  mentioned  when 
the  slip  was  signed. 

Rut  this  was  an  assured  on  goods,  who  is  not  liable  on  an  implied  warranty 

r  *718  1  ^°  ^^^  ^^^^^  ^'^*^  ^'^'P  '^  properly  documented  :  *it  is  otherwise  if  the 
L  J  owner  of  a  ship  is  insured.  Bell  v.  Carstairs.  (o) 

But  in  a  subsequent  case  at  Nisi  Prins,  Lord  EUenhoroii p;h  thought  that  a 
representation  made  by  the  insurance  broker,  when  the  names  are  put  on  the 
slip,  is  binding,  unless  quahfied  or  withdrawn  between  that  time  and  the  lime 
of  the  execution  of  the  policy,  Edwards  v.  Footner.  {b) 

In  the  cases  of  Horneyer  v.  Lushins^ton,  (c)  and  Osivell  v.  Vigne,'{d)  it 
was  held  that,  if  a  ship  be  condemned  for  having  simulated  papers,  no  leave 
being  given  to  carry  tliem,  the  underwriter  is  discharged.  But  it  is  otherwise 
if  leave  be  given.  Bell  v.  Bromfield.  [e)  These  cases  answer  the  question  of 
Lord  Chief  Justice  ilfon.v^e/rf,  in  Steele  v.  Lacy,,{f)  as  to  the  propriety  of 
carrying  them. 

If  the  ground  of  decision  appear  to  be  not  on  the  want  of  neutrality,  but 
upon  a  foreign  ordinance,  manifesdy  unjust,  and  contrary  to  the  laws  of  nations, 
and  the  insured  has  only  infringed  such  a  partial  law :  as  the  condemnation  did 
not  proceed  on  the  point  of  neutrality,  it  cannot  apply  to  the  warranty  so  as  to 
discharge  the  insurer. 

In  31ei/ne  v.  Walter,  {2;)  on  a  policy  of  insurance,  the  ship  was  warranted 
to  be  Portuguese,  and  having  been  taken  in  her  voyage  by  a  French  privateer, 
she  was  carried  into  France.  The  Court  of  Admiralty  condemned  her,  because 
she  had  an  English  supercargo  on  board.  It  appeared  that  there  was  a  French 
ordinance,  prohibiting  any  Dutch  ship  from  carrying  a  supercargo  belonging  to 
any  nation  at  enmity  with  the  Court  of  France.  In  an  action  against  the 
underwriter  these  facts  appeared,  upon  which  a  verdict  was  found  for  the  plain- 
tiff, subject  to  the  opinion  of  the  Court  upon  this  question, — AVhether  the  cir- 
cumstance of  having  an  English  supercargo  was  a  breach  of  neutrality,  and 
whether  such  a  sentence  was  conclusive  ? 

P  *7iq  -1  ^horCi  Mansfield. — "It  is  an  arbitrary  and  oppressive  regulation, 
L  J  contrary  to  the  law  of  nations,  and  there  is  no  proof  that  the  plain- 

tiff kneAv  anything  of  it.  If  you  were  both  ignorant  of  it,  the  underwriter  must 
run  all  risks ;  and  if  the  defendant  knew  of  the  edict,  it  was  his  duty  to  inquire 


(e)  7  East,  367. 

(a)   14  East,  374. 

lb)    1  Camp.  530. 

(c)    15  East,  46. 

Id)    15  East,  70. 

(e)   15  East,  364. 

(/)    3  Taunt.  285. 

\g)  B.  R.  Easter  Term,  22  Geo.  3. 

Park  Ins.  730. 

OF    NON-COMPLIANCE    WITH    WARRANTIES.  395 

if  there  was  such  a  supercargo  on  board.  It  must  be  fraudulent  conceabncnt 
to  vitiate  a  poUcy.  But  it  is  remarkable  that  neither  party  has  said  anylliiuf  of 
the  treaties  between  France,  and  Portugal;  neither  party  seems  to  know  any- 
thing about  them,  and  yet  the  whole  case  turns  upon  them."  Judgment  for  the 
plaintiff. 

So  as  in  the  case  of  Siffkin  v.  Zee,  (a)  if  a  ship  be  restored,  but  damages 
and  costs  denied  to  the  claimants,  because  they  had  not  fully  complied,  as  to 
their  documents,  with  certain  French  ordinances,  the  assured  may  recover  for 
the  detention  notwithstanding. 

So  also  in  the  case  of  Pollard  v.  Bell^  [b)  which  was  an  insurance  on  goods 
on  board  the  ship  Juliana,  "warranted  a  Dane,''''  on  a  voyage  from  London 
to  Tenerlffe,  with  liberty  to  touch  at  Guernsey  and  Maderia,  for  account  of 
persons  resident  at  Tencriffe;  and  tjie  loss  was  declared  to  be  by  capture.  At 
the  trial,  a  verdict  was  found  for  the  plaintiff,  subject  to  the  opinion  of  the 
Court  upon  a  case  which  staled  that  the  ship  was  a  Danish  ship,  and  the  pro- 
perty of  Danish  subjects,  and,  previous  to  the  voyage  insured,  had  a  passport, 
signed  by  the  King  of  Denmark.,  for  a  voyage  from  Copenhagen,  to  ports  in 
the  East  Indies.  Eggleston,  the  captain  of  the  ship,  sailed  from  Copenhagen, 
on  the  23rd  of  June,  1796,  having  on  board  a  cargo  of  tar,  pitch,  &e.,  and 
arrived  in  the  Thames,  according  to  verbal  orders  from  his  owners,  23rd  July, 
1796.  During  his  stay  he  took  on  board  goods  for  the  owners,  besides  those 
in  question,  and  having  taken  out  clearances  for  Madeira  and  Guernsey,  sailed, 
arrived  at  the  latter  place,  and,  after  sailing  from  thence,  was  captured  by  a 
French  privateer,  and  carried  into  Bourdeaux.  At  the  *time  of  p  #790  -1 
the  caj)ture,   and  during  the  whole  voyage,   the  Juliana  had  on  L  J 

board  the  passport,  and  every  other  document  usually  carried  by  Danish  ships. 
She  had  also  a  role  d' equipage,  containinsf  the  names  and  places  of  nativity  of 
the  officers,  but  not  of  the  crew,  only  stating  the  latter  generally  to  be  sixty 
men  of  colour.  Captain  Eggleston  was  born  in  Scotland,  of  British  parents. 
He  was  not  naturalized  in  Denmark;  but  on  the  6th  of  October,  1794,  poste- 
rior to  the  war  between  England  and  France,  he  obtained  letters  of  burgher- 
ship  in  Denmark,  but  had  no  domicile,  never  having  resided  there. 

Proceedings  were  instituted  at  Bourdeaux,  before  the  Tribunal  of  Commerce, 
which  condemned  the  ship  and  cargo,  except  one  bale,  belonging  to  the  captain, 
as  prize.  From  this  sentence  Captain  Eggleston  appealed  to  the  Civil  Tribunal 
of  Im  Gironde,  where  there  was  a  general  sentence  of  condemnation.  These 
sentences  referred  to  several  French  ordinances,  particularly  the  one  alluded  to 
in  Meyne  v.  Walter,  of  1778,  by  which  it  is  declared  that  all  ships  shall  be 
confiscated  "wherever  there  shall  be  found  on  board  a  supercargo,  merchant, 
commissary,  or  chief  officer,  being  an  enemy."  It  is  not  necessary  to  state 
these  sentences,  because  the  Court  of  King's  Bench  were  of  opinion  that  the 
effect  of  those  sentences,  and  particularly  of  the  ultimate  sentence  now  to  be 
mentioned,  was  to  condemn,  not  on  the  ground  that  the  property  was  not  neutral, 
but  because  the  circumstance  of  the  captain,  being  a  Scotchman,  was  a  violation 
of  thjs  ordinance.  From  the  two  former  sentences  the  captain  appealed  to  the 
Supreme  Tribunal  of  Cassation  at  Paris,  which  decreed  as  follows: — "Jiav- 
ing  heard  the  parties,  the  Tribunal,  considering  that  it  has  been  fully  proved 
by  the  confession  of  Captain  Eggleston,  and  ascertained  by  the  .Tudges  of  La 
Gironde,  that  the  said  Captain  Eggleston  was  born  in  Scotland,  and  an  enemy  ; 
that  his  denization  in  a  neutral  country  was  not  justified  according  to  law  5  that 
his  quality  of  enemy  sufficed  to  legitimate  the  prize ;  that  the  fact  of  Captain 
Eggleston  being  a  Scot  and  an  enemy,  existed  independently  of  the  papers  on 

(a)  2  N.  R.  484.  (6)  8  T.  R.  434. 


396  OF    NON-COMPLIANCE    WITH    WARRANTIES. 

r  *791  1  board;  that  in  consequence  *all  remedies  of  nullity  drawn  either 
L  -J  from  the  withdrawing  of  some  of  the  papers  on  board,  or  from 

the  non-application  of  the  seal  to  the  bag  wherein  they  were  inclosed,  cannot 
give  any  ground  to  cassation  j  rejects  the  request  of  Captain  Eggleston,  and 
condemns  him  to  the  fine  of  150  francs."  After  this  case  was  twice  argued, 
Lord  Kenyan,  C  J.,  said. — '*This  is  an  action  on  a  policy  of  insurance 
on  goods  on  board  a  ship  warranted  to  be  a  Danish  ship :  a  loss  having  hap- 
pened, the  defendant  resists  the  plaintiff's  claims,  because  (he  says)  the  ship 
in  question  was  not  what  she  was  warranted  to  be,  Danish:  and  I  agree  with 
the  defendant,  that  the  meaning  of  the  warranty  was  not  merely  that  the  ship 
was  Danish  built,  but  tlv.it  she  ought  to  be  so  circumstanced  during  the  voyage 
as  a  Danish  ship  ought  to  be.  This  does  not  appear  to  me  to  be  a  case  of 
difficulty,  though  it  is  of  great  importance  to  tiie  public.  This  is  one  of  the 
numberless  questions  that  have  arisen  in  consequence  of  the  extraordinary  sen- 
tences of  condemnation  passed  by  the  Courts  of  Admiralty  in  France  during 
the  war.  I  do  not  think  they  were  characterised  too  strongly  at  the  Bar,  when 
it  was  stated  they  all  proceeded  on  a  system  of  plunder;  but  still,  until  the 
Legislature  interferes  on  this  subject,  we,  sitting  in  a  Court  of  Law,  are  bound 
to  give  credit  to  the  sentences  of  a  competent  jurisdiction.  If,  therefore,  in 
this  instance,  the  French  Courts  had  condemned  this  ship,  on  the  ground  that 
it  was  not  Danish  property,  we  should  have  been  concluded  by  that  sentence 
in  this  action,  and  must  (however  reluctandy,  it  being  stated  as  a  fact  in  the 
beginning  of  the  case  that  it  was  a  Danish  ship)  have  given  judgment  for  the 
defendant.  This  is  proved  by  the  different  cases  cited  in  the  argument,  with 
the  decisions  in  which  I  concur,  and  it  is  supported  by  reason.  To  a  question 
asked  in  the  course  of  the  argument,  AVhat  are  the  rules  by  which  Courts  of 
Admiralty  profess  to  proceed? — I  answer,  the  law  of  nations,  and  such  treaties 
as  particular  states  have  agreed  should  be  engrafted  on  that  law.  It  was  said, 
P  *79o  -1  however,  by  the  defendant's  counsel,  that  an  arret  has  the  same 
L  "^     J  force  as  *a  treaty;  but,  without  stopping  to  enlarge  on  the  differ- 

ence between  them,  it  is  sufficient  to  say,  one  is  a  contract  made  by  the  con- 
tracting parties,  and  the  other  is  an  ex  parte  ordinance  made  by  one  nation 
only,  to  which  no  other  is  a  party  ;  and  I  concur  with  Lord  Mansfield  in 
opinion,  that  it  is  not  competent  to  one  nation  to  add  to  the  law  of  nations  by 
its  own  arbitrary  ordinances  without  the  concurrence  of  other  nations.  That 
is  the  ground  on  which  this  case  must  be  decided.  Now  let  us  see  what  was 
the  foundation  of  the  condemnation  in  the  French  Courts.^  It  is  stated  in  one 
of  the  sentences  that,  by  their  own  ordinances,  all  ships  are  to  be  confiscated, 
"whensoever  on  board  these  ships  shall  be  found  a  supercargo,  merchant,  com- 
missary, or  chief  officer,  being  an  enemy."  But  I  say  they  had  no  right  in 
making  such  an  ordinance  to  bind  other  nations.  Then  was  the  ship  in  ques- 
tion condemned  on  the  ground  that  she  was  not  Danish  property.'^  Certainly 
not.  A  vast  variety  of  circumstances,  wholly  irrelevant,  are  set  forth  in  the 
sentences  ;  but  it  appears,  beyond  all  doubt,  that  the  ship  was  at  last  condemned 
on  the  ground  that  the  captain  was  one  of  those  persons  whom,  by  their  own 
ordinance  only,  they  wished  to  proscribe.  This  case  cannot  be  distinguished 
from  that  of  Meyne  v.  Walter,  [a)  though,  even  without  the  authority  of  that 
case,  1  should  have  had  no  hesitation  in  deciding  in  favour  of  the  plaintiff".  On 
the  whole,  therefore,  I  am  of  opinion,  that  though,  if  contrary  to  justice,  the 
ship  had  been  condemned,  simply  because  she  was  not  a  Danish  ship,  we 
should  have  been  concluded  by  that  sentence,  yet  as  the  Courts  abroad  have 
endeavoured  to  give  other  supports  to  their  judgments  which  do  not  warrant  it, 


(a)  Ante,  p.  718. 


OF    NON-COMPLIANCE    WITH    WARRANTIES.  397 

and  liavo  stated,  as  the  foundation  of  the  sentence  of  condemnation,  one  of 
their  own  ordinances,  which  is  not  binding  on  oUier  nations,  this  sentence  does 
not  prove  that  the  ship  in  question  was  not  a  neutral  ship :  and,  consequently, 
the  plaintiff  is  entitled  to  recover." 

^Laivrence^  J. — "The  question  is,  whether  the  sentence  has  p  ^~oq 
negatived  the  warranty  of  neutrality  ?  The  warranty  of  neutrality  L  '-•>  J 
does  not  induce  any  necessity  to  comply  with  the  peculiar  regulations  of  the 
belligerent  powers.  For  if  a  ship  be  captured,  and  the  question  be,  whet'ier 
she  be  neutral  or  not,  the  general  rule  for  judging  and  deciding  on  that  point  is 
the  law  of  nations,  subject  to  such  alterations  and  modifications,  as  may  have 
been  introduced  by  treaties :  but  where  the  law  of  nations  hns  not  been  varied 
or  departed  from  by  mutual  agreement,  that  is  the  general  rule  for  deciding  all 
questions  on  matter  of  prize.  This  is  clearly  laid  down  in  a  state  paper  signed 
by  Sir  George  Lee,  Dr.  Paul,  the  King's  Advocate,  and  Sir  D.  Ryder  and  Mr. 
Murray,  the  Attorney  and  Solicitor  General,  in  answer  to  the  Prussian  memo- 
rial concerning  neutral  ships.  (</)  When,  therefore,  a  state  in  amity  with  a 
belligerent  power  has  by  treaty  agreed  that  the  ships  of  their  subjects  shall  only 
have  the  character  when  furnished  with  certain  precise  documents,  whoever 
warrants  a  ship,  as  the  property  of  such  subject,  should  provide  himself  with 
those  evidences  which  have  by  the  country  to  which  it  belongs  been  agreed  to 
be  the  necessary  proof  of  that  character.  In  requiring  tliis,  no  difficulty  is 
imposed,  of  which  the  assured  is  not  aware,  and  which  may  not  be  in  his 
power  to  prevent:  but  to  require  of  him  to  furnish  himself  with  every  docu- 
ment the  belligerent  powers  may  require,  and  to  insist  that  the  warranty  is  not 
complied  with,  unless  the  ship  be  navigated  according  to  their  ordinances  and 
regulations,  would  be  to  deprive  the  assured  of  his  indemnity  for  the  want  of 
papers,  &c.,  of  the  necessity  of  which  he  may  fairly  be  presumed  ignorant, 
and  which  papers  it  may  not  be  in  his  power  to  procure :  for  how  can  the 
officers  of  one  country  be  called  on  to  grant  that,  which  the  laws  of  their  own 
country  do  not  require?  These  French  decrees  are  regulations  made  with 
some  views  to  the  laws  of  France^  *but  are  not  applicable  to  the  r-  ^^^^  .  -, 
subjects  of  any  otlier  country.      In  examining  the  cases  decided  on  L       '  J 

this  point,  it  will  not  be  found  that  there  is  any  determination  of  the  Court  to 
support  what  has  been  insisted  on  by  the  defendant :  but  on  the  contrary,  it 
has  been  setded  in  many  cases,  that  a  condemnation  on  the  particular  ordi- 
nances of  a  belligerent  power  is  no  violation  of  a  warranty  of  neutrality.  In 
the  case  of  Bernardi  v.  Motteux,  (a)  the  ship  Joanna  was  warranted  neutral  j 
the  only  doubt  was,  whether  the  ship  were  condemned  as  being  the  property 
of  an  enemy,  or  for  violating  a  French  arret  by  throwing  papers  overboard; 
for  the  one  or  the  other  of  those  causes  she  was  condemned.  If  she  were 
condemned  for  the  first,  namely,  that  she  was  not  neutral,  the  plaintiff  clearly 
eould  not  have  recovered  :  nor  could  he  have  recovered  if  she  were  condemned 
on  the  other  ground,  according  to  the  argument  of  the  defendant  in  this  case  : 
but  it  is  clear,  that  the  Court  did  not,  in  that  case,  adopt  the  defendant's  aro-u- 
ment  here,  because  the  plaintiff  did  recover  in  that  case,  it  not  being  certain 
that  the  ground  of  condemnation  was,  that  the  ship  was  the  property  of  an 
enemy.  [The  learned  Judge  here  also  commented  on  the  case  of  Barzillay  v. 
Lewis,  {b)  and  on  Saloucci  v.  Johnson,  (c)  and  Meyne  v.  If'ulter,  (d)  and  then 
proceeded.]  The  argument  of  the  defendant  here  is,  that  the  sentence  of  con- 
demnation is  conclusive  on  the  point  that  the  ship  was  not  navigated  according 


(d)    Vide  Collectanea  Juridica,  1  vol.  33,  and  2d  Postlethwaite's  Dictionary,  7,  5,  article 
Silesia. 

(a)  Ante,  p.  712.  (i)  Ante,  p.  713. 

(c)  Ante,  pp.  307,  707,  and  post.  (d)  Ante,  p.  718. 


398  OF    NON-COMPLIANCE    WITH    WARRANTIES. 

to  the  contract  between  the  parties :  the  contract  between  the  parties  is  that  she 
was  a  neutral  ship,  but  the  sentence  has  not  decided  that  point;  it  has  only 
decided  that  she  was  not  naviiraled  according  to  the  ordinances  of  France,  but 
that  was  no  part  of  the  plaintiff's  contract.  In  deciding  this  case,  in  favour  of 
the  plaintiff,  we  do  not  take  upon  ourselves  to  say  that  the  sentence  of  the 
French  Court  of  Admiralty  is  erroneous  :  all  that  we  determine  is,  that  the 
French  Court  has  not  decided  that,  which  would  be  a  breach  of  the  warranty 
r  *79'S  1  of  the  neutrality.  On  the  *whole,  I  think  it  clear  that  the  ship  in 
L  '^'^^  J  question  was  condemned  for  acting  in  contravention  of  French 
ordinances,  and  tliat  does  not  falsify  the  warranty  of  neutrality." 

The  next  case  upon  this  subject,  is  that  of  Bird  v.  Jlppleton,  (a)  which  has 
already  been  mentioned  for  another  point  in  a  former  part  of  this  Treatise,  and 
was  an  insurance  on  the  ship  Confederacy,  an  .American  ship,  at  and  from 
Canton  in  China  to  Hamburs^h  or  Copenhagen:  and  at  the  trial  a  special  ver- 
dict was  found,  the  facts  of  which,  as  far  as  this  point  requires  the  statement  of 
them,  were,  "Uiat  the  ship  Confedcraci/  was  an  American  built  ship,  the  pro- 
perty of  American  subjects ;  that  the  ship  sailed  from  Canton  towards  Ham- 
burgh with  the  goods  on  board  in  January,  1797,  having  on  board  a  passport 
duly  made  out  and  granted  according  to  the  form  annexed  to  the  treaty  of  com- 
merce between  France  and  America,  and  during  her  voyage  was  captured  by  a 
/'renc/t  ship  of  war,  and  carried  mio  Nantz ;  where  proceedings  being  insti- 
tuted before  the  tribunal  for  determining  questions  of  prize,  the  ship  and  cargo 
were  condemned  as  prize."  The  sentence  began  with  the  following  considera- 
tions :  "Considering  that  although  it  appears  by  reading  and  examining  the 
documents,  and  by  the  declaration  of  the  captain,  supercargo,  and  the  greatest 
part  of  the  crew,  "that  the  ship  Confederacy  has  not  ceased  to  be  neutral  pro- 
perty, and  belonging  to  neutral  citizens  and  subjects  of  the  United  States  of 
America:  considering  that  although  by  the  same  documents  and  declarations, 
it  is  equally  evident  and  proved  that  the  goods  shipped  were  laden  by  neutral 
citizens  for  account  of  neutral  citizens :  considering  that,  notwithstanding  these 
favourable  presumptions,  nothing  can  exonerate  the  captain  and  supercargo  from 
having  regular  despatches,  in  order  to  prove  the  neutrality  of  the  ship."  The 
sentence  then  proceeds  to  recite  certain  French  ordinances,  which  declare  to  be 
good  prize  all  neutral  vessels  not  having  on  board  a  list  of  the  crew  attested  by 
r  *  9R  "1  ^^^  P"hlic  officers  of  the  neutral  *places.  It  then  says,  "consid- 
L  '^^  J  ering  Uiat  so  far  from  derogating  from  the  general  regulations  for  all 
nations  in  favour  of  the  Anglo-Americans  by  the  treaty  oi  February,  1778,  it 
implicidy  subjects  them  to  it  by  the  25th  and  27th  articles,  which  oblige  them 
to  conform  to  the  model  of  the  passport  annexed  to  the  treaty."  It  also  states 
a  law  of  the  Convention,  and  another  of  the  Executive  Directory  of  the  12th 
Ventose,  of  the  fifth  year,  which  latter  recites  the  ordinances  of  1774  and  1778, 
and  declares  that  all  American  vessels  shall  in  consequence  be  good  prize, 
which  shall  not  have  on  board  a  list  of  the  crew  in  due  form,  such  as  is  pre- 
scribed by  the  model  annexed  to  the  treaty  between  France  and  America  of 
1778.  The  sentence  then  concludes  thus:  "The  tribunal,  in  conformity  to 
the  above-mentioned  laws  and  regulations,  and  particularly  the  decree  of  the 
Executive  Directory  of  the  12th  Ventose,  fifth  year,  adjudges  and  declares  the 
validity  of  the  prize  of  the  foreign  ship  the  Confederacy,  and  all  the  goods  and 
effects  composing  the  lading  or  cargo  of  the  ship,  in  default  of  the  captain  and 
supercargo  being  regular  in  their  list  of  crew  and  despatches."  The  special 
verdict  also  found  that  ships  belonging  to  America  never  did  at  any  time  prior 
to  the  capture  in  question  carry  with  them  lists  of  their  crew  attested  in  the 


(a)  8  T.  R.  6G2.     Ante,  p.  635. 


OF    NON-COMPLIANCE    WITH    WARRANTIES.  399 

manner  required  by  the  ordiiianocs  referred  to;  and  that  America  has  always 
insisted,  and  still  insists,  that  her  ships  are  not,  by  treaty  or  otherwise,  bound 
or  obliged  so  to  do. 

«  This  special  verdict  was  argued  several  times  upon  the  various  points  that 
arose  upon  it;  and  the  Judges  afterwards  delivered  their  opinions  unanimously, 
as  to  this  point  in  favour  of  the  assured,  namely,  that  the  French  sentence  did 
not  decide  that  the  ship  was  not  neutral. 

Lord  Kemjon  said. — "After  the  greatest  attention  I  have  been  able  to  bestow 
on  the  subject,  I  adhere  to  the  opinion  that  we  gave  in  the  case  of  Pollard  v. 
Bell^  (a)  and  that  decision  is  direcUy  in  point  to  the  present  case."  His  Lord- 
ship *thcn  adverted  to  particular  parts  of  the  sentence,  which  it  is  r-  .^.^.y^  -, 
unnecessary  here  to  consider;  but  concluded  that  it  was  manifest  L  J 

from  an  attentive  consideration  of  the  whole  sentence,  that  the  single  ground, 
on  which  it  proceeded,  was  that  mentioned  in  the  concluding  part  of  the  sen- 
tence, namely,  "in  default  of  the  captain  and  supercago  being  regular  in  their 
list  of  crew  and  their  despatches."  Now  that  is  neidier  required  by  the  law 
of  nations,  or  by  the  treaty  between  France  and  the  United  States  of  America, 
and  it  is  found  by  the  verdict  that  all  the  requisites  of  that  treaty  were  complied 
with.      The  rest  of  the  Court  concurred.     Judgment  for  the  plaintiff. 

In  a  subsequent  case  of  Price  v.  Pell,  (b)  upon  a  special  verdict,  the  insu- 
rance was  on  a  ship  and  goods,  the  ship  being  in  fact  an  American,  but  not 
warranted  to  be  so,  and  the  case  seems  to  turn,  not  on  the  point  of  enemy's 
property,  but  on  this,  whether  the  ship  was  documented  as  an  American  ship 
ought  to  have  been  according  to  its  own  laws  and  its  treaties  with  other  coun- 
tries. She  was  provided  with  a  passport,  such  as  is  constantly  used  by  all 
American  ships,  and  all  other  usual  papers  and  a  new  muster-roll,  made  upon 
oath  before  the  Lord  Mayor  of  London,  several  of  his  original  crew  having 
died,  but  all  the  new  men  being  Americans,  and  signed  and  certified  l)y  the 
American  minister,  having  left  the  original  muster-roll  with  the  said  minister. 
The  ship  sailed  from  London  bound  for  Charlcstoivn,  the  voyage  insured,  and 
was  captured  by  a  French  privateer  and  carried  into  L^  Orient.  The  sentence 
of  the  first  tribunal  stated  the  questions  of  law  to  be.  Whether  the  new  muster- 
roll  was  in  the  legal  form  to  supply  the  first  list.^  And  secondly,  Whether  the 
bills  of  lading  and  other  papers  touching  the  cargo  prove  the  neutral  property 
of  it.^  It  then  proceeds  with  various  considerations,  of  violated  ordinances  of 
July,  1778,  and  a  decree  of  the  Executive  Directory  promulgating  the  ordi- 
nances of  1744  *and  1778,  and  decrees  the  ship  and  cargo  to  be  j-  -.".^q  -i 
good  prize :  although  one  of  the  considerations  is  to  this  effect.  L       '  J 

considering  in  law  that  the  register  and  sea-letter  prove  the  American  property 
of  the  ship,  but  the  log-book  proves  that  the  passport  has  served  for  several 
voyages,  contrary  to  the  formal  regulations  of  the  fourth  article  of  the  ordinance 
of  July,  1778.  From  this  sentence  the  captain  appealed;  but  the  superior 
Court  declared  the  former  sentence  valid,  adding  to  the  former  ordinances  a  law 
of  the  29th  A^ivose  last,  expressing,  "the  state  of  ships  in  regard  to  what  con- 
cerns their  neutral  or  enemy's  quality  shall  be  determined  by  their  cargo  ;  there- 
fore every  vessel  met  at  sea  laden  entirely  or  in  part  with  goods  the  produce  of 
England,  shall  be  declared  lawful  prize,  whoever  may  be  the  owner."  This 
special  verdict  was  argued  three  several  times  at  the  Bar,  and  the  Court  took 
time  to  consider  of  their  opinion,  it  appearing  that  the  main  difiiculty  of  the 
case  turned  upon  the  question  of  an  implied  warranty,  there  being  no  express 
one. 


(a)  Ante,  p.  718.  (i)    1  East,  663. 

Vol.  Vn.— B  2 


400  OF    NON-COMPUANCE    WITH    WARRANTIES. 

The  Court  did  not  decide  that  point,  for  thoy  were  ultimately  of  opinion,  as 
was  declared  by  Lord  Kenyon  in  pronouncin<r  thoir  unanimous  judgment,  that 
supposing"  an  implied  warranty  did  exist,  the  sentences  did  not  nej^ative  such  a 
warranty,  both  the  sentences  appearing  manifesdy  to  have  proceeded  on  the 
ground  of  a  breach  of  French  ordinances,  which  were  contrary  to  the  treaty 
between  the  two  countries,  were  not  adopted  by  it,  nor  is  tlie  condemnation 
expressed  by  the  sentence  to  have  been  for  acting  contrary  to  the  treaty.  Judg- 
ment for  the  plaintiff. 

But  where  the  foreign  sentence  professes  to  proceed  on  the  ground  of  an 
infraction  of  treaty,  such  sentence  is  conclusive  against  the  warranty,  although 
inferences  were  drawn  in  such  sentence  from  p.x  parte  ordinances  in  aid  of  their 
conclusion  that  the  treaty  was  broken.  Baring  v.  Royal  Exchange  Assurance 
Company,  (a) 

r     i'79Q     ~]      ^^'  come  now  to  refer  to  a  more  important  case  than  any  *pre- 
L  J  ceding  one,  namely,  Kindersley  and  others,  ^^ppcUants^  v.  Chase 

and  others,  Respondents,  [b)  It  was  an  insurance  effected  at  Madras  by  the 
appellants  on  account  of  the  Swedish  Asiatic  Company,  on  the  ship  Resolu- 
tion, Captain  Neale,  and  the  insurance  was  declared  to  be  on  goods,  as  interest 
may  appear,  and  warranted  Sivedish  property.  The  ship  sailed  with  a  valu- 
able cargo,  and  being  obliged  to  put  into  the  Isle  of  France  for  refreshment, 
the  ship  and  cargo  were  there  seized  as  prize,  and  ultimately  condemned.  The 
tribunal  of  commerce  in  the  Isle  of  France,  after  enumerating  the  various 
papers  and  documents  found  on  board,  proceeds  to  state,  "That  the  legal  ques- 
tions for  investigation  and  decision  are,  first,  whether  the  proceedings  in  regard 
to  the  fact  of  the  seizure  of  the  ship  were  carried  on  agreeably  to  the  terms  of 
the  laws  relative  to  proceedings  in  matter  of  prize.''  2nd,  Whether  by  the 
papers  composing  the  said  proceedings,  and  there  produced  by  the  respective 
parties,  and  also  from  the  objections  and  exceptions  severally  taken,  and  by  the 
terms  of  the  regulations  and  ordinances  made  on  the  subject  of  the  navigation 
of  neutral  vessels  in  time  of  war,  the  said  ship  and  her  cargo  must  be  consid- 
ered as  enemy's  property,  and  as  such  confiscated  to  the  use  of  the  republic ; 
or  whether,  on  the  contrary,  the  said  ship  and  her  cargo  must  be  considered  as 
Sivedish  property,  and  restored  to  the  claimants.^"  The  sentence  as  to  the 
second  question  proceeds  thus: — "Considering  that  it  appears,  as  well  by  the 
confession  of  the  master  on  his  examination,  as  by  the  declaration  of  the 
passengers  and  others  of  the  crew,  that  he  is  an  Englishman  by  birth.  Con- 
sidering that  the  character  of  a  naturalized  Sivede  adopted  by  him  in  the  pro- 
ceedings cannot  be  legally  entertained ;  seeing  that  instead  of  providing  by 
letters  of  naturalization  from  the  King  of  Siveden,  he  only  produces  an  act  of 
his  having  taken  the  oath  on  the  14th  July,  1795,  before  the  Burgomaster  of 
Gottenhurg,  which  is  insuflScient  by  reason  that  every  act  of  nationality  or 
r  *7^n  1  neutralization  can  only  *be  proved,  according  to  the  usage  of  the 
L  ^  European  powers,  by  an  act  isstied  by  the  prince  himself.      Con- 

sidering that,  even  though  this  certificate  of  the  oath  having  been  taken,  should 
be  considered  as  equivalent  to  letters  of  naturalization,  granted  by  the  King  of 
Sweden,  it  would  want  the  condition  required  by  law  for  its  validity,  as  it  could 
only  have  been  made  two  years  subsequent  to  the  declaration  of  war  with 
England,  and  would  consequently  be  direcUy  opposite  to  the  words  of  the  6th 
article  of  the  regulation  of  neutrals  in  1778,  which  are  as  follow  : — "No  regard 
will  any  more  be  paid  to  passports  granted  by  neutral  powers  or  allies,  as  well 
to  owners  as  masters  of  ships,  subjects  of  states  in  enmity  with  his  Majesty, 

(a)  5  East,  99. 

\b)  Cockpit,  July  21  «Sc  22,  1801.     Park  Ins.  743. 


OF    NON-COMPLIANCE    WITH    WARRANTIES.  401 

if  they  are  not  neutralized,  or  have  not  transferred  their  property  to  the  states 
of  those  powers  three  months  before  the  1st  of  September  of  the  present  year." 
Considering  that  it  also  appears,  as  well  by  the  proceedings  as  by  the  declara- 
tion of  the  crew,  and  that  of  Mr.  Gordon,  that  the  said  Gordon  is  a  Scotchman, 
consequently  an  enemy ;  that  he  was  second  captain  on  board  the  said  ship 
Resolution^  and  that  he  certainly  exercised  the  functions  thereof  from  the  period 
of  his  leaving  Europe,  and  during  the  whole  of  the  voyage;  that  this  first 
officer  was  shipped  at  Guernsey  without  any  of  the  forms  prescribed  by  law 
being  observed,  for  proving  the  disembarkation  of  the  person  mentioned  in  the 
muster-roll,  as  likewise  the  necessity  of  replacing  him  with  an  officer  of  an 
hostile  power.  Considering  that  the  regulation  of  1778,  declaring  lawful  prize 
foreign  vessels,  on  board  of  which  there  shall  be  a  supercargo,  merchant,  clerk, 
or  principal  officer  of  an  enemy's  country,  save  in  those  cases  as  excepted  in 
the  lOtli  article,  where  the  papers  shall  prove  by  documents  found  on  board, 
that  they  were  under  the  necessity  of  taking  on  board  chief  officers  or  sailors, 
at  the  ports  they  put  into,  to  replace  those  belonging  to  a  neutral  country,  which 
died  in  the  course  of  the  voyage ;  and  the  defendants  do  not  in  any  manner 
prove  it,  agreeably  to  the  directions  and  regulations.  Considering  that  the  gen- 
eral invoice  and  bill  of  lading  produced  by  the  captain,  the  particu-  ^  ^^„.  -. 
lar  ^invoice  of  the  cargo  made  by  Kindersley,  Watts  and  Company,  L  J 

and  Colt,  Day  and  Company,  of  Madras,  being  unsigned,  cannot  be  received 
by  the  Court  conformably  to  the  2nd  article  of  the  same  regulation.  Consid- 
ering that  the  papers  produced  by  Captain  Neale,  as  well  to  establish  the 
pretended  character  of  an  American,  as  likewise  to  prove  the  existence  of  the 
necessity  he  was  in  to  replace,  at  Guernsey,  the  first  officer  inserted  in  the 
muster-roll  by  Mr.  Gordon,  are  neither  sufficient  nor  legal;  and  that  even 
admitting  them  to  be  so,  they  Xiould  not  be  received  by  the  Court,  by  reason 
that  they  were  not  delivered  within  the  time  prescribed  by  the  terms  of  the 
11th  article  of  the  same  regulation.  Considering  that  the  cargo  shipped  by 
Harrop  and  Stephenson,  of  Tranquehar,  is  for  account  of  the  operations  of 
the  ship  Resolution,  as  appears  by  account  current  of  the  said  gentleman,  of 
the  29th  of  March,  1797.  Considering,  finally,  that  the  king's  letters  of  the 
23rd  of  May,  1780,  issued  by  order  of  the  colonial  assembly,  and  registered 
in  the  Tribunal,  as  forming  part  of  the  regulation  of  1778,  has  no  other  object 
than  to  maintain  the  directions  of  the  regulations,  and  to  recommend  circum- 
spection to  captains  of  armed  ships  towards  neutral  vessels.  Everything  con- 
sidered, the  Court  administering  justice,  and  without  paying  attention  either  to 
the  points  and  demands,  or  to  the  matters  of  nullity  contended  for  by  the 
defendants  in  regard  to  the  proceedings  taken  by  the  justice  of  peace,  declare 
the  seizure  of  the  ship  Resolution  to  be  good  and  lawful,  order  the  said  ship 
and  cargo  to  be  condemned  for  die  use  of  the  republic." 

This  case  came  on  to  be  tried  on  the  plea  side  of  the  Recorder's  Court  at 
Madras;  and  a  verdict  was  given  for  the  appellants,  subject  to  the  opinion  of 
the  Court  upon  a  case  reserved  upon  the  single  point  as  to  the  effect  or  opera- 
tion of  the  sentence  of  the  Court  of  Admiralty  in  the  Isle  of  France,  the  Re- 
corder, (Sir  Thomas  Strange)  being  of  opinion  at  the  trial,  that  independently 
of  the  French  sentence,  the  appellants  had  made  out  a  sufficient  case  to  entitle 
them  to  a  *verdict.  Upon  the  argument  of  this  case.  Sir  Thomas  p  $700  -i 
Strange  gave  judgment  for  the  respondents,  stating  as  a  ground  of  L  J 

his  decision,  that  the  Admiralty  Court  had  considered  the  question,  whether  the 
property  was  enemy's  or  neutral,  and  had  condemned  it  as  enemy's,  and  con- 
sequently the  warranty  was  conclusively  disproved  by  that  sentence. 

From  this  judgment  the  present  appeal  was  brought,  and  after  elaborate  argu- 
ment at  the  Bar,  the  Lords  of  the  Privy  Counsel  dismissed  the  appeal,  and 
their  judgment  was  pronounced  by 


402  OF    NON-COMPLIANCE    WITH    WARRANTIES. 

The  Master  of  the  Rolls  («) — "It  i?  necessary  to  make  a  few  observations, 
to  shew  the  grounds  upon  which  our  opinion  proceeds,  confirming  the  judg- 
ment of  the  Recorder  of  the  Court  at  Madras. 

"The  opinion  which  we  have  formed  as  to  the  effect  of  tlie  sentence  of 
condemnation  makes  it  unnecessary  for  us  to  go  into  the  consideration  of  all 
the  questions  Uiat  have  been  raised  in  tlie  course  of  the  discussion.  With 
regard  to  one,  whicli  was  started  towards  the  conclusion  of  the  argument, 
whether  a  sentence  of  condemnation  in  an  Admiralt}^  Court  can  ever,  in  a 
Court  of  Common  Law,  be  held  to  falsify  a  warranty  in  a  policy  of  insurance  of 
one  who  is  no  party  to  it?  I  think  it  is  not  open  to  make  that  question.  Till 
now,  no  objection  has  been  made  on  the  part  of  the  appellants  to  the  sentence 
as  evidence,  their  gravamen  was,  not  that  it  was  received  for  the  purpose  for 
which  it  was  offered,  but  that  being  received,  it  did  not  show  that  the  con- 
demnation proceeded  on  the  ground  of  enemy's  property :  tliat  Was  the  sole 
question  agitated  in  the  Court  below.  Supposing  it  had  been  open  to  raise 
that  question,  I  conceive  it  must  here,  at  least,  have  been  raised  in  vain ;  for, 
sitting  here  as  a  Court  of  Appeal,  from  a  Court  of  Municipal  Law,  we  must 
decide  according  to  those  rules,  which  we  find  established  for  Courts  of  Muni- 
P  *7qq  -|  cipal  Law ;  and  therefore  we  must  decide  *a  question  on  a  policy 
L  J  of  insurance,  in  the  same  manner  as  we  find  a  Court  in  Westmin- 

ster Hall  would  have  decided  such  a  question.  Now  it  is  quite  clear  that  from 
the  time  of  Lord  Hale  down  to  the  present  period,  it  has  been  settled  that  a 
sentence  of  condemnation  in  a  Court  of  Admiralty  is  conclusive.  When  it 
proceeds  on  the  grounds  of  enemy's  property,  it  is  conclusive  that  the  property 
does  belong  to  enemies,  not  only  for  the  immediate  purpose  of  such  a  sentence, 
but  it  is  binding  on  all  Courts  and  as  against  all  persons.- (6)  This  has  been  so 
clearly  understood,  that  it  was  not  even  controverted  in  the  case  of  the  Duchess 
of  Kingston^  where  the  conclusive  effects  of  all  sorts  of  evidence  was  so  ably 
discussed.  It  was  admitted  that  the  sentence  of  a  Court  of  Admiralty,  pro- 
ceeding in  rem,  must  bind  all  parties — must  bind  all  the  world.  Now,  taking 
a  sentence  to  be  conclusive,  when  it  has  distinctly  determined  that  the  property 
belonged  to  enemies,  a  question  is  made,  Whether  this  sentence  is  to  produce 
this  effect .f*  It  is  said  every  sentence  of  condemnation  does  not  produce  that 
effect,  because,  by  a  great  many  decisions,  it  has  been  now  established  that  if 
it  clearly  appears  on  the  face  of  the  sentence  that  it  was  not  on  the  ground  of 
enemy's  property  that  the  condemnation  proceeded,  but  that  the  Court  bot- 
tomed itself  on  some  distinct  ground,  in  that  case  the  warranty  of  neutrality  is 
not  necessarily  falsified  by  such  a  sentence  of  condemnation ;  and  certainly 
there  are  several  cases  that  have  so  decided.  I  have  looked  at  them  all,  and 
not  one  of  them  will  be  contradicted  by  our  decision  on  this  case.  It  is  gen- 
erally to  be  presumed  that  such  sentences  proceed  on  legitimate  grounds,  and, 
therefore,  they  are  in  general  conclusive  proof,  with  respect  to  the  property, 
negativing  the  warranty  of  neutrality,  and  proving  the  propriety  of  the  con- 
demnation, (c)  Hence  it  follows  that  it  does  not  lie  on  the  party  producing  the 
r  'fTQJ.  1  sentence  to  show  that  it  has  proceeded  on  the  ground  of  enemy's 
L  J  *property ;  but  it  is  incumbent  on  the  other  party,  who  objects  to 

the  sentence,  to  show  that  it  proceeded  on  some  other  ground.  That  I  take  to 
be  the  effect  of  these  decisions,  and  therefore  it  is  necessary  here  to  show  some 
distinct  and  collateral  ground  on  which  the  sentence  has  proceeded,  leaving  the 
question  of  property  entirely  undetermined;  and  accordingly  in  every  one  of 


(o)  Sir  William  Grant. 

(/;)   And  see  per  Lord  Mansfield  in  Bernardi  v.  Mottcux,  ante,  p.  712. 

(c)  See  per  Lord  Kenyon,  and  J.  Grose,  in  Pollard  v.  Bell,  ante,  p.  718. 


OF    NON-COMPLIANCE    WITH    WARRANTIES.  403 

tlie  cases  in  which  the  effect  contended  for  by  the  underwriters  has  been  denied 
to  a  sentence  of  condemnation,  the  Court  of  Common  Law  has  thoutrht  itself 
warranted  in  coniin^  to  this  conchision,  that  the  sentence  itself  shows  that  the 
question  of  property  was  not,  and  was  not  professed  to  be,  decided  by  the  Court 
of  Admiralty.  What  is  the  case  here.''  The  Court  expressly  tells  us  what 
the  questions  were  which  they  had  to  decide — One  question  was,  'Whether 
the  proceedings  were  regular.'"  The  other  question  was,  'Whether,  by  the 
papers  composing  the  said  proceeding,  and  there  produced  by  the  respective 
parties,  and  also  from  the  objections  and  exceptions  severally  taken,  and  by 
the  terms  of  the  regulations  and  ordinances  made  on  the  subject  of  the  naviga- 
tion of  neutral  vessels  in  time  of  war,  the  said  ship  and  cargo  must  be  con- 
sidered as  enemy's  property,  and  as  such  confiscated  to  the  use  of  the  republic? 
Or  whetlier,  on  the  contrary,  the  said  ship  and  her  cargo  must  be  considered  as 
Swedish  property,  and  restored  to  the  defendants  } ' 

'•Whether  it  was  to  be  confiscated,  according  to  that  statement,  depended, 
as  they  say,  on  the  question  whether  it  was  the  property  of  enemies  or  of  neu- 
trals.? If  it  was  property  of  enemies,  then  it  was  to  be  confiscated,  but  if  the 
property  of  neutrals,  it  was  to  be  restored  to  the  defendants.  Then  we  find 
them  determine  that  it  is  to  be  confiscated  for  the  benefit  of  the  republic.  Now 
we  must  strain  very  hard  to  make  them  contradict  themselves  in  pronouncing 
the  sentence  of  condemnation,  if  we  say  that  they  did  not  mean  to  determine 
anything  with  respect  to  the  property,  when  at  the  same  moment  they  said,  the 
sentence  depended  entirely  on  the  question  of  property.  It  is  said,  it  appears 
from  one  of  the  *reasons  of  their  decision,  that  they  must  have  p  ^-.o-  -i 
proceeded  on  the  ground  of  their  own  ordinance,  particularly  on  •-  -' 

the  ordinance  of  1778,  which  declares,  'that  the  circumstance  of  having  a 
supercargo  or  chief  officer  on  board  belonging  to  an  enemy  will  be  a  sufficient 
ground  of  condemnation.'  Now,  supposing  for  a  moment  it  was  chiefly,  for 
certainly  it  was  not  solely,  through  that  medium  that  they  arrived  at  the  con- 
clusion that  it  was  enemy's  property,  would  that  have  been  sufficient  to  authorize 
us  to  treat  the  sentence  as  inconclusive  ? 

"Supposing  they  had  stated  the  facts  of  the  case,  without  any  reference  to 
the  ordinance,  could  any  man  say  that  these  facts  were  so  irrelevant  to  the  con- 
clusions they  have  drawn  of  enemy's  property  that  a  Court  of  Common  Law 
would  have  thought  itself  at  liberty  to  go  into  the  question,  and  see  whether 
the  conclusion  was  Avarranted  or  not?  The  Court  of  King's  Bench  has  always 
disclaimed  such  a  jurisdiction.  Then  does  it  vitiate  the  sentence  that  a  Court  of 
competent  jurisdiction  has  said,  there  is  an  ordinance  which  warrants  and  sup- 
ports such  a  sentence  ?  These  ordinances  have  been  misunderstood,  sometimes 
by  the  Courts  of  Admiralty  themselves  in  France,  and  even  (sometimes)  by  the 
Courts  in  this  country.  The  Courts  of  Admiralty  in  France  have  sometimes 
considered  these  ordinances  as  making  the  law,  and  as  binding  on  neutrals,  and. 
therefore  sometimes  have  declared  in  the  same  breath  that  the  property  was 
neutral,  and  yet  that  it  was  liable  to  condemnation.  AVhereas  all  that  was 
meant  by  those  ordinances  was,  to  lay  down  rules  of  decision  conformable  to 
what  the  lawyers  and  statesmen  of  the  country  understood  to  be  the  just  prin- 
ciples of  maritime  law.  When  Louis  the  Fourteenth  published  the  famous 
ordinance  of  1681,  nobody  thought  that  he  was  undertaking  to  legislate  for 
Europe,  merely  because  he  collected  together  and  reduced  into  the  shape  of  an 
ordinance,  the  principles  of  the  marine  law  as  then  understood  and  received 
in  France.  1  say,  as  understood  in  France,  for  although  the  law  of  nations 
ought  to  be  the  same  in  every  country,  yet  as  the  tribunals  which  p  *7qfi  -i 
*administer  that  law  are  wholly  independent  of  each  other,  it  is  L  J 

impossible  that  some  differences  shall  not  take  place  in  the  manner  of  interpreting 
and  administering  it  in  the  different  countries  which  acknowledge  its  authority. 


404  OF    NON-COMPLIANCE    WITH    WARRANTIES. 

Whatever  may  have  been  since  attempted,  it  was  not,  at  the  period  now  referred 
to,  supposed  that  one  state  could  make  or  alter  the  law  of  nations ;  but  it  was 
judged  convenient  to  declare  certain  principles  of  decision,  pardy  for  the  pur- 
pose of  giving  an  uniform  rule  to  their  own  Courts,  and  pardy  for  the  purpose 
of  apprising  neutrals  what  that  rule  was.  And  it  was  truly  observed  at  the 
Bar,  in  the  course  of  the  argument,  that  it  has  been  matter  of  complaint  against 
us  (how  justly  is  another  consideration)  that  we  have  no  such  code,  by  which 
neutrals  may  learn  how  they  may  protect  themselves  against  capture  and  con- 
demnation. Now  this  Court,  in  this  case,  seems  to  me  to  have  well  and  pro- 
perly understood  the  effect  of  their  own  ordinances.  They  have  not  taken 
them  as  positive  laws  binding  on  neutrals,  but  they  refer  to  them  as  establishing 
legitimate  presumptions,  from  which  they  are  warranted  to  draw  the  conclusion 
that  is  necessary  for  them  to  arrive  at,  before  they  are  entided  to  pronounce  a 
sentence  of  condemnation. 

"Supposing  they  had  only  stated  the  facts,  as  they  are  now  before  us,  are 
they  to  be  considered  as  so  irrelevant,  that  a  Court  of  Common  Law  would 
say,  'This  sentence  is  repugnant  to  justice,  and  is  unwarranted  on  the  ground 
on  which  it  has  proceeded.^'  [The  Master  of  the  Rolls  here  enumerated  the 
facts  appearing  on  die  French  sentence,  supposing  them  to  have  occurred  in 
a  British  Court  of  Admiralty,  and  then  proceeded,]  "Supposing  all  these 
circumstances  to  be  brought  before  a  Court  of  Admiralty  in  this  country,  I 
think  it  would  be  questionable,  whether  they  would  have  permitted  further 
proof:  I  apprehend  die  property  would  hardly  have  escaped  condemnation  in 
the  first  instance.  What  is  the  result  of  all  the  cases  that  have  been  deter- 
mined? From  them  all,  Mr,  Justice  Le  Blanc  collects  this  principle,  namely, 
r-  ^«o7  -1  that  a  sentence  of  a  Court  of  Admiralty  is  conclusive  as  to  all  it 
L  '■^"  J  ^professes  to  decide,  {a)  Now,  is  it  possible  to  say,  that  this 
Court  did  not  profess  to  decide,  whether  this  was  or  was  not  enemy's  pro- 
perty ?  It  was  the  only  question  they  did  profess  to  decide,  for  there  is  no 
other  question  stated  by  them  upon  which  their  decision  could  proceed,  except 
that  of,  Whether  the  properly  belonged  to  enemies  or  neutrals  ?  And  therefore 
we  do  not  only  not  contradict  any  case  that  has  been  decided,  by  affirming  the 
judgment  of  the  Court  below,  but  we  are  bound  so  to  do,  by  all  the  principles 
of  these  cases ;  and  we  should  contradict  them  if  we  did  not  affirm  the  sen- 
tence of  the  Court  of  Madras.^'' 

Lord  Gknbcrvie. — "I  only  wish  to  make  one  observation  on  the  case  of 
Pollard  V.  Bell.  It  seems  quite  otherwise  as  to  the  fact  in  that  case,  from 
diis  which  has  been  so  ably  stated  here ;  and  I  entirely  concur  in  opinion,  as 
it  has  been  now  delivered.  In  the  case  of  Pollard  v.  BclL  the  French  Court 
did  not  profess  to  go  on  the  ground  of  enemy's  property.  Here  they  do  pro- 
fess to  go  on  the  ground  of  enemy's  property.  Whether  they  ought  or  ought 
not  to  have  come  to  this  conclusion  is  another  question,  but  it  is  clear  that  in 
Pollard  V.  Bell,  that  particular  Court  did  not  do  so :  it  did  not  decide  on  the 
ground  of  enemy's  property  or  not;  but  they  declare  merely,  that  the  ship  is 
confiscated  because  she  had  a  belligerent  captain  or  supercargo  on  board.  Now 
that  being  the  case,  and  die  sentence  not  having  so  professed  to  proceed,  the 
very  first  fact  that  was  stated  in  that  case  was,  that  the  ship  was  neutral  pro- 
perty. The  warranty  was  on  die  ship,  though  the  insurance  was  on  the  goods 
on  board ;  that  being  so,  it  appears  that  that  case  is  not  at  all  on  the  facts  of  it 
resembling  this." 

Sir  William  Scott. — "From  the  case  oi  Pollard  v.  Bell,  it  appears  clearly, 
that  the  French  Court  of  Admiralty  had  been  guilty  of  great  inattention  in  their 


(a)   Vide  his  opinion  in  Pollard  v.  Bell,  8  T.  R.  p.  443,  ante,  p.  719. 


OF    NON-COMPLIANCE    WITH    WARRANTIES.  405 

own  edicts ;  but  by  this  inaccuracy  they  brought  the  facts  out  distinctly  to  the 

*view  of  an  English  Court  of  Common  Law,  and  liereby  enabled  r- 

them  to  give  the  decision  they  had  given."  L    ^738     J 

Mr,  J.  Park\\exe  observes,  («)  "But  the  point  was  at  that  very  time  depend- 
ing in  the  House  of  Lords,  upon  an  appeal  from  Scotland,  in  tlie  case  of 
Lothian  and  another  v.  Henderson  and  another^  {/))  and  upon  the  second 
hearing  of  which,  all  the  Judges  were  summoned.  I  was  one  of  the  counsel, 
and,  by  the  express  order  of  their  Lordships,  in  order  to  set  this  point  at  rest 
for  ever,  we  were  desired  to  argue  at  the  Bar  in  question  of  the  admissibility 
in  evidence  of  a  sentence  of  a  foreign  Court  of  Admiralty,  in  an  action  upon 
a  policy  of  insurance,  in  order  to  falsify  a  warranty  of  neutrality.  And  after  • 
mature  deliberation,  although  there  was  some  diiTerence  of  opinion  about  some 
special  circumstances,  all  the  Judges  were  unanimous  in  declaring,  that  after 
the  continued  practice  which  had  taken  place  from  the  earliest  period,  in  which, 
in  actions  on  policies  of  insurance,  questions  had  arisen  on  warranties,  to  admit 
such  sentences  as  evidence,  not  only  as  conclusive  in  rein,  but  also  as  conclu- 
sive of  the  several  matters  they  purpose  to  decide  direcUy,  it  was  too  late  to 
examine  the  practice  of  admitting  them  to  the  extent,  to  which  they  had  been 
received,  supposing  that  practice  might  have  at  first  appeared  to  have  been 
doubtful,  upon  the  argument,  that,  on  the  authority  of  those  decisions,  men 
had  acted  for  a  long  series  of  years,  and  entered  into  contracts  of  assurance  in 
this  country,  with  a  perfect  knowledge  of  such  decisions,  and  in  expectation  of 
the  questions  arising  out  of  such  contracts,  to  which  such  decisions  are  appli- 
cable, being  ruled  by  them.  And  as  to  the  supposed  uncertainty  that  had  pre- 
vailed in  our  Courts  upon  the  construction  of  foreign  sentences.  Lord  Mvanley, 
Chief  Justice  of  the  Court  of  Common  Pleas,  said,  the  doctrine  laid  down  in 
Kindersley  v.  Chase,  (c)  appeared  to  him  best  calculated  to  do  away  that  uncer- 
tainty," 

^Lord  Ellenborough,  Chief  Justice  of  the  King's  Bench,  who  r-  .^„q  -, 
was  necessarily  absent  at  Guildhall  when  the  House  of  Lords  L  ^''^^  J 
decided  the  cause  of  Lothian  v.  Henderson,  but  whose  concurrence  in  the 
judgment  then  pronounced  was  declared  by  Lord  Eldon,  (Lord  Chancellor) 
had  soon  after  an  opportunity  of  declaring  from  the  Bench  of  his  own  Court 
what  he  conceived  to  be  the  effect  of  that  decision.  In  delivering  the  judgmellt 
of  the  Court  in  Bolton  v.  Gladstone,  [d)  his  Lordship  said,  "Since  the  judg- 
ment of  the  House  of  Lords  in  Lothian  v.  Henderson,  it  may  now  be  assumed 
as  the  settled  doctrine  of  a  Court  of  English  law,  that  all  sentences  of  foreign 
Courts,  of  competent  jurisdiction  to  decide  questions  of  prize,  are  to  be  re- 
ceived here  as  conclusive  evidence  in  actions  upon  policies  of  assurance,  upon 
every  subject  immediately  and  properly  within  the  jurisdiction  of  such  foreign 
Courts,  and  upon  which  they  have  professed  to  decide  judicially." 

But  it  was  held  in  the  case  of  Fisher  v.  Ogle,  (e)  they  must  decide  upon 
the  point  distinctly,  in  order  to  affect  a  warranty  or  representation  in  a  policy  of 
insurance.  That  they  meant  to  decide  the  point  is  not  to  be  collected  by  infer- 
ence or  argument,  but  by  specific  affirmation.  Lord  Ellenborough  so  declared 
on  the  trial  of  an  action  on  a  policy  of  insurance  on  the  ship  Juno,  represented 
as  an  American,  at  and  from  London  to  Africa,  during  her  stay  and  trade 
there,  and  from  thence  to  her  port  or  ports  of  discharge  in  the  West  Indies. 

The  ship  was  captured  by  a  French  privateer,  and  carried  into  Martinique, 
and  there  condemned  in  the  Vice  Admiralty  Court.      To  falsify  the  represen- 


(a)  Page  753.  (i)  3  Bos.  «fe  Pull.  499. 

(c)  Ante,  pp.  732,  737.  \d)  5  East,  15.5. 

(e)  Sit.  after  Trin.  1808,  1  Camp.  418. 


406  OF    NON-COMPLIANCE    WITH    WARRANTIES. 

tation  of  neutrality,  the  dcfenJant  now  gave  in  evidence  the  sentence  on  con- 
demnation. This  stated,  "that  it  resulted  evidently  from  the  papers  on  board  ; 
that  the  expedition  of  the  said  ship  Juno,  her  cargo,  and  the  operations  of  her 
captain  on  the  coast  of  Africa,  wore  for  account  of  the  brothers  Geddes,  mer- 
chants of  London,  who  had,  to  masque  the  English  property  of  this  outfit, 
r  *74n  ~\  borrowed  *the  Jlmerican  flag  and  passport  of  the  said  ship  Jiino. 
L  J  and  taken  for  their  agent  and  partner  in  this  expedition.  Captain 

Fischer,  furnished  with  a  certificate  of  a  citizen  of  the  United  Statea.''''  The 
sentence  afterwards  went  on  to  declare  as  good  and  valid  prize  the  slave  ship 
Juno,  and  to  confiscate  the  said  ship  and  her  cargo  to  the  profit  of  the  captors, 
without  stating  any  specific  grounds  for  the  condemnation. 

Lord  Ellenborougli. — "We  shew  a  sufficient  respect  for  French  sentences, 
if  we  attacli  credit  in  our  Courts  to  what  they  distinctly  say.  It  is  often  painful 
to  go  this  length,  considering  the  piratical  way  in  which  they  proceed.  But 
this  sentence  does  not  say  that  the  ship  was  not  American;  and  it  is  not  to  be 
considered  as  evidence  of  what  it  does  not  specifically  affirm.  I  dare  say  such 
sentences  will  be  positive  enough  in  future,  since  those  -who  frame  them  are 
disposed  to  consider  every  thing  as  good  prize  against  all  mankind.  When 
they  do  speak  out,  I  will  give  them  the  same  eflect  here  which  they  receive  in 
other  places.  But  tliere  is  no  proof  in  the  present  case  that  the  property  was 
not  Jlmerican,  although  such  an  inference  might  be  drawn  from  certain  indirect 
statements  in  the  sentence  now  presented  to  us."     Verdict  for  the  plaintifl'. 

In  the  ensuinsf  Term  a  motion  was  made  for  a  new  trial :  and  it  was  con- 
tended  by  the  counsel  for  the  defendant,  that  it  necessarily  resulted  from  the 
terms  of  the  sentence  of  the  French  Admiralty  Court,  that  the  ship  Juno  and 
her  cargo  were  not  American,  although  this  was  not  positively  averred  in  any 
part  of  it:  and  that,  according  to  the  principles  of  former  decisions,  the  sen- 
tence of  a  foreign  Court  of  competent  jurisdiction  must  be  taken  as  conclusive 
evidence  of  the  facts  upon  which  it  evidently  proceeds. 

Lord  EUenborough. — "I  must  look  at  the  adjudicative  part  of  the  sentence; 
and  there  I  find  nothing  distinctly  stated  as  to  the  ship  or  her  cargo  not  being 
American.  Is  there  any  ease  in  which  it  has  been  held  that  Judges  must  fish 
r  *'*'4i  1  ^''^^'  ^  meaning,  when  a  sentence  of  this  kind  is  produced  *to  them. 
L       '  -'  Here  the  foreign  Court  seems  not  to  have  any  settled  opinion  upon 

the  subject,  and  not  to  have  known  or  cared  on  what  grounds  it  proceeded  to  a 
condemnation.  It  is  by  an  overstrained  comity  that  these  sentences  are  received 
as  conclusive  evidence  of  the  facts  which  they  positively  aver,  and  upon  which 
they  specifically  profess  to  be  founded." 

The  other  Judges  were  of  the  same  opinion,  and  the  rule  was  refused. 

In  Calvert  v.  JBovill,  {a)  which  was  an  action  on  a  policy  of  insurance  on  the 
captain's  goods  and  private  adventure,  warranted  Ai7iericcm  property,  on  board 
the  ship  Friends,  at  and  from  London  to  Virginia,  a  sentence  of  a  French 
Court  of  Admiralty  was  produced,  which  was  to  the  following  efi'ect:  "Foras- 
much as  the  true  destination  of  the  ship  was  for  the  English  islands,  having 
been  hired  and  loaded  at  London,  and  that  there  has  been  found  on  board  her 
eighty  barrels  of  gunpowder;  the  Court  declares  the  said  brig  Friends,  together 
with  her  cargo,  a  good  prize." 

The  Court  of  Kinjj's  Bench  held  that  this  sentence  was  not  conclusive  against 
the  warranty  of  neutrality,  the  facts  of  the  case  and  the  reasons  expressly  given, 
leading  to  a  contrary  conclusion.  If  the  sentence,  indeed,  had  condemned  the 
goods,  because  they  were  the  property  of  an  enemy,  that  judgment  would 
have  been  conclusive,  but  they  have  given  other  reasons  for  their  sentence. 

(a)  7  T.  R.  523. 


OF    NON-COMPLIANCE    WITH    WARRANTIES.  407 

There  is  an  important  case  on  this  subject  decided  so  late  as  1831  :  it  is  the 
case  of  Dulghish  and  others  v.  Hodgson,  (a)  which  was  an  action  on  an 
insurance  on  "goods"  on  board  the  ship  George.  It  was  decided  in  this  case 
that  the  sentence  of  a  forcifrn  Court  of  Admiralty  is  not  conchisive  as  to  the 
ground  of  condemnation,  unless  it  be  explicidy  stated  what  that  ground  is  :  and 
it  was  held  in  this  case  that  this  did  not  appear  on  a  sentence  which  stated 
"  that  *the  ship  George  had  sailed  from  Liverpool,  knowing  of  the  ^  ^-^49  -1 
blockade  of  Buenos  Ayrcs,  by  the  Emperor  of  Brazil,  from  a  L       '  J 

short  distance  from  which  port  she  was  taken,  and  for  that  reason  ought  to  be 
considered  as  violating  the  blockade ;  besides  which,  it  was  notorious  that  the 
captured  had  endeavoured  to  get  goods  into  Btienos  Ayres,  as  was  clear  from 
the  evasive  answers  of  the  captain  5  that  the  captured  had  not  the  plausible 
excuse  of  going  first  to  Monte  Video,  and  thereby  complying  with  the  published 
instructions ;  from  all  which  and  from  the  documents  stated,  the  ship  was 
adjudged  good  prize."  At  the  trial  a  verdict  was  directed  to  be  entered  for  the 
plaintiff',  subject  to  the  opinion  of  the  Court  upon  a  case,  [h)  After  argument, 
the  Court  took  time  to  consider  their  judgment,  which  was  delivered  afterwards 
by  Tindal,  C.  J.  "The  principal  question  in  this  case  is,  whether  the  sen- 
tence of  condemnation  of  the  brig  George  and  her  cargo,  in  the  Prize  Court  of 
Monte  Video,  dated  the  13th  December,  1826,  is  to  be  received  in  our  Courts 
as  conclusive  evidence  of  the  fact,  that  the  ship  was  captured  in  attempting  to 
break  the  blockade  of  Buenos  Ayres.  For  if  tliat  is  to  be  taken  as  a  fact  con- 
clusively proved,  then  the  plaintitfs  in  this  action  are  in  no  condition  to  recover. 

The  general  law  upon  this  subject  is  well  known,  that  the  sentence  of  a 
foreign  Court  of  Admiralty  of  competent  jurisdiction  is  binding  upon  all  parties, 
and  in  all  countries,  as  to  the  fact  upon  which  the  condemnation  proceeded, 
where  such  appears  on  the  face  of  the  sentence  free  from  doubt  and  ambiguity. 
But  it  is  at  the  same  time  as  well  established,  that  in  order  to  conclude  the 
parties  from  contesting  the  ground  of  condemnation  in  an  English  Court  of 
Law,  such  ground  must  appear  clearly  upon  the  face  of  the  sentence :  it  must 
not  be  collected  by  inference  only,  or  left  in  uncertainty,  whether  the  ship  was 
condemned  upon  one  ground  wliich  would  be  a  just  ground  of  condemnation 
by  the  law  of  nations,  or  on  another  ground  which  would  amount  only  to  a 
breach  of  *the  municipal  regulations  of  the  condemning  country,  p  *74q  -1 
The  cases  of  Fisher  v.  Ogle,  {c)  and  Calvert  v.  Bovill,  [d]  are  L  '      J 

express  authorities  to  this  point,  and  the  sentence  of  condemnation  in  the  latter 
case  bears  a  strong  resemblance  to  that  in  the  present.  There  Lord  Kenyon, 
C.  J.,  says,  "If,  indeed,  that  Court  had  stated  in  their  sentence  that  they  con- 
demned the  goods  because  they  were  British  property,  I  should  have  consid- 
ered myself  bound  by  that  sentence ;  but  they  have  assigned  other  reasons  for 
adjudication :  the  express  grounds  of  the  sentence  of  the  adjudication  are,  that 
the  ship  was  destined  to  one  of  the  TVest  Indian  Islands ;  that  she  was  hired 
and  loaded  at  London,  and  had  a  certain  quantity  of  gunpowder  ozi  board; 
therefore  they  condemned  her  and  her  cargo  as  a  good  prize." 

Now,  looking  at  the  adjudicatory  part  of  this  sentence,  which  is  the  impor- 
tant part  for  the  discovery  of  the  precise  ground  for  condemnation,  it  is  in  these 
terms,  viz  :  "From  all  which,  and  from  what  the  documents  state,  I  judge  the 
said  brig  George  and  her  cargo  to  be  good  and  lawful  prize  to  the  capturers." 
The  words  'from  all  which'  refer  us  back  to  the  premises,  to  discover  the 
grounds  of  the  sentence ;  and  in  those  premises  we  find  enumerated  three 
distinct  statements:  first,  "that  it  plainly  appears  from  all  the  documents  that 

(a)  7  Bing.  495.  {!))  Which  see  at  p.  496  of  the  Report, 

(c)   1  Camp.  417.     Ante,  p.  739.  Id)  7  T.  R.  523.     AiUe,  p.  741. 


408  OP    NON-COMPLIANCE    WITH    WARRANTIES. 

the  brig  sailed  from  Liverpool  knowing  of  the  blockade,  and  which  the  cap- 
tured do  not  even  deny,  nor  that  her  destination  was  Buenos  Ayres,  at  a  short 
distance  from  which  she  was  taken ;  secondly,  that  for  the  reason  last  given, 
she  ought  to  be  considered  as  violating  the  blockade ;  thirdly,  that  the  ship  had 
not  even  the  plausible  excuse  of  coining  to  Monte  Video  first,  and  thereby 
complying  with  the  published  instructions." 

Now,  upon  referring  to  these  premises,  we  think  we  cannot  safely  infer  that 
the  precise  ground  of  condemnation  was  the  attempt  to  break  tiie  blockade. 
The  first  statement  refers  to  the  illegality  of  the  ship's  destination  from  JAver- 
r  ^"riA  ~\  P^^^  ^^  *  Buenos  Ayrcs,  then  being  under  blockade.  It  is  impossible 
L  J  to  say  with  certainty  that  the  sentence  may  not  have  proceeded  on 

that  ground  in  part,  if  not  altogether;  it  is  more  than  probable  it  did  so,  for  in 
another  part  of  the  premises  the  Judge  reverts  to  this  statement  in  these  terms, 
*' Forasmuch  as,  besides  not  doing  away  the  proof  that  Buenos  Jiyres  was  the 
first  port  the  shipment  was  intended  for,  in  itself  criminal."  But  if  this  was 
the  ground  upon  which  the  sentence  proceeded,  in  the  first  place,  it  is  no 
ground  for  condemnation  by  the  law  of  nations,  unless  there  was  intention  to 
violate  the  blockade ;  and  in  the  next  place,  the  sentence  leaves  untouched  the 
question  of  fact,  whether  the  lilockade  was  broken  or  attempted  to  be  evaded? 
If  it  formed  an  ingredient  in  the  Brazilian  Court  of  Admiralty,  no  one  can 
say  how  much  it  weighed  with  them,  or  that  if  the  ground  of  condemnation 
had  been  out  of  the  case,  the  Court  intended  to  rely  on  the  fact  of  the  blockade 
broken  as  their  ground  of  adjudication.  Again,  in  the  latter  part  of  the  pre- 
amble to  the  sentence,  tlie  Judge  refers  to  a  non-compliance  with  published 
instructions  as  a  charge  against  the  master  of  the  ship.  What  these  instruc- 
tions are,  does  not  appear ;  whether  some  regulations  ordained  by  their  own 
authority  or  not  is  uncertain.  But  if  this,  which  is  no  ground  for  condemna- 
tion by  the  general  law  of  nations  [Meyne  v.  JValter,)  (d)  operated  on  the  mind 
of  the  foreign  Judge  to  condemn  the  ship  and  cargo,  tliere  is  an  end  again  to 
the  conclusive  finding  of  the  fact  that  the  ship  violated  the  blockade  at  Buenos 
\Byres.  Under  a  sentence,  therefore,  expressed  with  so  much  doubt  and  ambi- 
guity as  to  the  real  ground  on  which  it  proceeded,  we  hold  ourselves  at  liberty 
to  determine  whether,  upon  the  evidence  at  the  trial,  such  violation  of  the  block- 
ade did  in  fact  take  place  or  not ;  and  upon  that  question  we  are  satisfied  on  the 
evidence  that  the  captain  did  not  break,  nor  did  he  intend  to  break,  the  block- 
P  s-^r  -|  ''^^^1  '^^t  that  he  honestly  intended  to  obtain  instructions  *from  the 
L       '  -•  blockading  squadron,   not  having  been  before  warned  ofl"  by  the 

Brazilian  cruisers. 

The  only  remaining  objection  that  has  been  insisted  on  against  the  plaintiff's 
riffht  to  recover  is,  that  the  voyage  in  question  was  an  illegal  voyage  in  its  com- 
mencement, because  the  ship  was  destined  to  a  port  which  was  notified  to  be 
under  blockade.  But  that  this  was  not  an  illegal  voyage  was  determined  by  the 
Court  of  King's  Bench,  («)  upon  a  voyage  described  in  the  policy  in  the  very 
same  terms  as  the  present,  and  under  circumstances  so  precisely  similar  that  it 
is  unnecessary  for  us  to  say  more  than  that  we  entirely  concur  with  the  judg- 
ment there  given,  founded  upon  the  authority  of  Lord  StoweWs  judgment,  in 
the  case  of  the  Shepherdess,  ib)     Judgment  for  the  plainlifl^s. 


((/)  East,  22  Geo.  3.  Park  Ins.  730.     Ante,  p.  601. 

(«)   Naylor  v.  Taylor,  9  B.  &  C.  718.      Ante,  p.  317. 

{b)  .5.  Rob.  Ad.  Rep.  262:  ante,  p.  315.  See  also  the  cases  of  the  Neptunus,  2  Rob. 
110;  and  of  the  Adelaide,  2  Rob.  112,  (n),  ante,  p.  315.  And  see  the  case  of  Harratt  v. 
Wise,  9  B.  &  C.  712,  ante,  p.  315,  where  this  subject  relating  to  the  blockade  is  fully 
treated  of. 


OF    NON-COMPLIANCE    WITH    WARRANTIES.  409 

In  the  case  of  Saloucci  v.  Johnson,  (c)  wliich  has  been  already  referred  to, 
one  of  the  main  points  rehited  to  the  question  respecting  tlie  right  of  searchiner 
neutral  vessels,  which  was  decided  in  the  negative.  But  that  decision  has  been 
overruled  by  the  Court  of  Admiralty  and  by  the  Court  of  King's  Bench,  in 
1799,  in  the  case  of  Garrels  v.  Kensington,  (d)  It  was  an  action  on  a  policy 
on  goods  in  the  ship  Dispatch,  warranted  Danish  ship  and  property.  The 
loss  was  alleged  to  be  by  capture.  A  sentence  of  a  British  Court  of  Admiralty 
was  produced,  stating  that  the  said  neutral  ship  Dispatch,  with  her  cargo,  being 
Danish  property,  had  been  under  the  authority  of  the  law  of  nations  and  of  war, 
and  agreeably  to  existing  treaties,  stopped  and  detained  by  the  commander  of 
one  of  his  Majesty's  ships,  and  by  him  sent  towards  the  port  of  Mole  S. 
Nicholas,  for  the  purpose  of  being  legally  examined,  under  the  command  of 
Barrett,  a  midshipman,  and  two  seamen  j  and  that  on  the  near  approach  to  the 
port,  the  master,  supercargo,  and  crew  of  the  said  ship  *had,  in  p  *74«  ~| 
direct  violation  and  breach  of  their  neutrality  as  Danish  subjects,  L  J 

and  contrary  to  the  law  of  nations  and  the  faith  of  treaties,  forcibly  rescued  and 
taken  and  kept  possession  thereof  till  again  captured  by  a  French  privateer, 
and  she  was  again  captured  by  one  of  his  Majesty's  ships ;  and  the  said  neutral 
ship  and  cargo  were,  therefore,  adjudged  good  prize. 

The  Court  was  of  opinion  that  the  sentence  of  the  Court  of  Admiralty  was 
conclusive  that  this  vessel  had  so  conducted  herself  as  to  forfeit  her  neutrality, 
by  acting  in  violation  of  that  neutrality,  and  contrary  to  the  law  of  nations  and 
faith  of  treaties.  That  as  to  the  question  concerning  the  right  of  searching 
neutrals,  it  was  said  by  the  Court  that  before  the  late  armed  neutrality,  it  was 
considered  in  this  country,  and  so  decided  in  may  cases,  that  the  right  of  search- 
ing neutrals  was  part  of  the  law  of  nations  ;  and  that  such  right  was  supposed 
to  be  founded  on  reason.     Judgment  was  given  for  the  defendant. 

The  Court,  however,  in  the  above  case,  said,  they  did  not  mean  to  overturn 
the  case  of  Saloucci  v.  Johnson,  for  in  that  case  the  Court  of  Admiralty  had 
not  adjudged,  as  in  the  present  case,  that  the  ship  had  forfeited  her  neutrality. 
But  the  general  point  there  mentioned,  that  a  neutral  ship  need  not  submit  to  be 
searched,  cannot  be  supported  ;  for  it  is  laid  down  in  Vattel,  (ci)  that  this  right 
clearly  exists,  without  which  the  commerce  of  contraband  goods  could  not  be 
prevented. 

Bynkershoek  also  mentions,  as  a  thing  undisputed,  the  right  of  stopping  a 
neutral  vessel,  in  order  that  it  may  appear,  not  from  the  flag,  which  may  be 
fraudulently  assumed,  but  from  the  ship's  papers,  whether  the  vessel  be  really 
neutral.  (6) 

Valin  says,  that  the  refusal  to  shorten  sail  and  submit  to  be  searched,  on  the 
part  of  a  merchant  vessel,  when  summoned  by  a  man-of-war,  renders  the  vessel 
liable  to  confiscation,  (c) 

*And  De  Martens  says  that  a  merchant  vessel  must  submit  to  p  ^747  "i 
visitation  from  a  commissioned  vessel  in  time  of  war,  under  penalty  L  J 

of  confiscation,  (o) 

Besides  which,  in  a  late  case  in  the  Court  of  Admiralty,  [b)  Sir  TVilliam 
Scott  thus  states  the  law  :   "That  the  right  of  visiting  and  searching  merchant 

(c)  B.  R.  Hil.  25  Geo.  3,  Park  Ins.  757,  ante,  pp.  307,  707. 

(d)  8  T.  R.  230.  (a)  Vatal,  b.  3,  c.  7,  s.  114. 

(h)  Quss.  Jur.  Pub.  lib.  1,  c.  xiv.  (c)  Ordonn.  de  la  Mar.  lib.  iii.  tit.  ix.  art.  xii. 

(a)  Pa'cis,  liv.  viii.  c.  vii.  §  321.  And  see  this  subject  treated  of  at  length  and  a  refer- 
ence made  to  the  treaties  between  Great  Britain  and  other  states  during  the  war,  and  also 
to  the  collision  which  took  place  between  this  country  and  America,  as  to  the  question  of 
the  right  to  search  ships  of  war  in  the  year  1806,  in  the  Commentaries  on  the  Law  of 
Nations,  by  Mr.  Manning.  Chap.  XI. 

(A)  The  Maria,  Paulsen,  Master,  decided  the  11th  June,  1799,      1  Rob.  A.  R.  365. 


410  OF    NON-COMPLIANCE    WITH    WARRANTIES. 

ships  upon  the  high  seas,  whatever  be  the  ships,  whatever  be  the  cargoes, 
whatever  lie  the  dostinations,  is  an  incontestible  right  of  the  lawfully  commis- 
sioned criiizers  of  a  belligerent  nation  ;  because,  till  tliey  are  visited  and  searched, 
it  does  not  appear  what  the  ship,  or  the  cargoes,  or  the  destinations  are  ;  and  it 
is  for  this  purpose  of  ascertaining  those  points,  that  the  necessity  of  this  right 
of  visitation  and  search  exists.  This  right  is  so  clear  in  principle,  that  no  man 
can  deny  it  who  admits  the  legality  of  maritime  capture;  because,  if  you  are 
not  at  liberty  to  ascertain  by  sufficient  inquiry  whether  there  is  property  that  can 
legally  be  captured,  it  is  impossible  to  capture.  Even  those  who  contend  for 
the  inadmissible  rule,  that  free  ships  make  free  goods,  must  admit  the  exercise 
of  this  right,  at  least,  for  the  purpose  of  ascertaining  whether  the  ships  are  free 
ships  or  not.  The  right  is  equally  clear  in  practice,  for  the  practice  is  uniform 
and  universal  upon  the  subject.  The  many  European  treaties  which  refer  to 
this  right,  refer  to  it  as  pre-existing,  and  merely  regulate  the  exercise  of  it.  All 
writers  upon  the  law  of  nations  unanimously  acknowledge  it,  without  the  excep- 
tion even  of  Habner  himself,  the  great  champion  of  neutral  privileges.  In  short, 
no  man  in  the  least  degree  conversant  in  subjects  of  this  kind  has  ever,  that  I 
know  of,  breathed  a  doubt  upon  it.  The  right  must,  unquestionably,  be  exer- 
r  *74R  "1  "^i^^*^  \v\\h  as  little  of  personal  harshness  and  of  vexation  *in  the 
L  J  mode  as  possible ;  but  soften  it  as  much  as  you  can  it  is  still  a 

right  of  force,  though  of  lawful  force,  something  in  the  nature  of  civil  process, 
where  force  is  employed,  but  a  lawful  force,  which  cannot  lawfully  be  resisted." 
In  another  place  this  very  learned  person  adds,  "The  penalty  for  the  violent 
contravention  of  this  right  is  the  confiscation  of  the  property  so  withheld  from 
visitation  and  search." 

And  the  same  law  prevails  in  America:  Kent,  in  his  Commentaries  says  : — 
"The  duty  of  self-preservation  gives  to  belligerent  nations  this  right.  The  doc- 
trine of  the  English  Admiralty  on  the  right  of  visitation  and  search,  and  of  the 
limitation  of  the  riijht,  has  been  recognized  in  its  fullest  extent  bv  the  Courts  of 
Justice  in  this  country."  (a) 

The  provisions  of  the  celebrated  Consolato  del  Mare,  on  the  subject  of  prize 
law,  deserve  to  be  noticed  in  this  place.  The  great  antiquity  of  that  body  of 
maritime  laws,  combined  with  its  still  existing  authority,  renders  it  well  worthy 
of  attention :  and  that  part  which  relates  to  the  subject  of  prize  law  has  a  par- 
ticular claim  on  our  notice,  as  the  equitable  regulations  applying  to  it  have  been 
acknowledged  and  recognized  for  many  centuries  by  all  the  maritime  states  of 
Europe^  and  are,  with  some  relaxation  of  their  severity,  still  agreeable  to  the 
maritime  code  and  the  law  of  nations  of  that  continent.  In  the  part  in  question 
it  is  said, — "If  an  armed  ship  or  cruiser  meet  with  a  merchant  vessel  belong- 
ing to  an  enemy,  and  carrying  a  cargo  the  property  of  an  enemy,  common  sense 
will  sufficiently  point  out  what  is  to  be  done;  it  is,  therefore,  unnecessary  to 
lay  down  any  rules  for  such  a  case."  [b) 

"If  the  captured  vessel  is  neutral  property,  and  the  cargo  the  property  of 
enemies,  the  captor  may  compel  the  merchant  vessel  to  carry  the  enemy's  cargo 
to  a  place  of  safety,  where  the  prize  may  be  secure  from  all  danger  of  recapture, 
paying  the  vessel  the  whole  freight  which  she  would  have  earned  at  her  deliv- 
r  s^/iQ  1  ering  port;  and  this  freight  shall  be  ascertained  from  *the  ship's 
L  J  papers ;   or,   in  default  of  necessary  documents,  the  oath  of  the 

master  shall  be  received  as  to  the  amount  of  freight."  (c) 

"Moreover,  if  the  captor  is  in  a  place  of  safety  where  he  may  be  secure  of 
his  prize,  yet  is  desirous  to  have  the  cargo  carried  to  some  other  port,  the  neu- 
tral vessel  is  bound  to  carry  it  thither ;  but  for  this  service  there  ought  to  be  a 


(a)   1  Rob.  A.  R.  153,  154,  155.  {h)  Chap,  cclxxiii.  s.  1. 

(c)  Sect.  s.  2. 


OF    NON-COMPLIANCE    WITH    WARRANTIES.  411 

compensation  agreed  upon  between  them,  or,  in  default  of  any  special  aorrec- 
ment,  the  merchant  vessel  shall  receive  for  that  service  the  ordinary  freight  that 
any  other  vessel  would  have  earned  for  such  a  voyage,  or  even  more ;  and  this 
is  to  be  understood  of  a  ship  that  has  arrived  in  the  place  where  the  captor  has 
secured  his  prize,  that  is  to  say,  in  the  port  of  a  friend,  and  going  on  an  ulte- 
rior voyage  to  that  port  to  which  the  captor  wishes  her  to  carry  the  cargo  which 
he  has  taken."  (b) 

*'If  it  shall  happen  that  the  master  of  the  captured  vessel,  or  any  of  the 
crew,  shall  claim  any  part  of  the  cargo  as  their  own,  they  ought  not  to  be 
believed  on  their  simple  word ;  but  the  ship's  papers  and  invoices  shall  be 
inspected ;  and  in  de-fault  of  such  papers,  the  master  and  his  mariners  shall  be 
put  on  tiieir  oatlis  ;  and,  if  on  tlieir  oaths,  they  claim  the  properly  as  their  own, 
the  captor  shall  restore  it  to  them,  regard  being  paid  at  the  same  time  to  the 
credit  of  those  who  swear  and  make  the  claim."  (c) 

"If  tlie  master  of  the  captured  vessel  shall  refuse  to  carry  the  cargo,  being 
enemy's  property,  to  some  such  place  of  safety,  at  the  command  of  the  captor, 
the  captor  may  sink  the  vessel  if  he  thinks  fit,  without  control  from  any  power 
•or  authority  wliatever,  taking  care  to  preserve  the  lives  of  those  who  are  in 
her.  This  must  be  understood,  however  of  a  case  where  the  whole  cargo,  or 
at  least  the  greater  part,  is  enemy's  property."  (f/) 

If  the  ship  should  belong  to  the  enemy,  the  cargo  being  *either  r  ^,^^0  "i 
in  the  whole  or  in  part,  neutral  property ;  some  reasonable  agree-  L       '  -' 

ment  should  be  entered  into  on  account  of  the  ship,  now  become  lawful  prize, 
between  the  captor  and  the  merchant  owning  the  cargo."  (a) 

•'If  the  merchants  refuse  to  enter  into  such  an  agreement,  the  captor  may 
send  the  vessel  home  to  the  country  whose  commission  he  bears ;  and,  in  that 
case,  the  merchants  shall  pay  the  freight  which  they  were  to  have  paid  at  the 
delivering  port:  and  if  any  damage  is  occasioued  by  this  proceeding,  the  captor 
is  not  bound  to  make  compensation,  because  the  merchant  had  refused  to  treat 
respecting  the  ship  after  it  had  become  lawful  prize  j  and  for  this  reason  also, 
that  the  ship  is  frequently  of  more  value  than  the  cargo  she  carries.  (6) 

"If,  on  the  other  hand,  the  merchants  are  willing  to  a  reasonable  agreement, 
and  the  captor,  from  arrogance,  or  other  wrong  motives,  refuses  to  agree,  and 
forcibly  sends  the  cargo  away,  the  merchants  are  not  bound  to  pay  the  whole, 
nor  any  part  of  the  freight ;  and  besides  the  captor  shall  make  compensation 
for  any  damage  he  may  occasion  to  them."  (c) 

"If  the  capture  should  be  made  in  a  place  where  the  merchants  have  it  not 
in  their  power  to  make  good  their  agreement,  but  are,  nevertheless,  men  of 
repute  and  worthy  to  be  trusted,  the  captor  sliall  not  send  away  the  vessel  with- 
out being  liable  for  damage ;  but  if  the  merchants  are  not  men  of  known  credit, 
and  cannot  make  good  their  stipulated  payment,  he  may  then  act  as  above 
directed."  ((/) 


(6)  Sect.  3.  -  ■                                       (c)  Sect.  4. 

(d)  Sect.  .5.  (a)  Sect.  6. 

(6)  Sect.  7.  (c)  Sect.  8. 

Id)  Sect.  9. 


412  OF    RETURN    OF    PREMIT7M. 


SECTION  IV. 


OF    RETURN    OF    PREMIUM. 


Having  in  the  three  preceding  Sections  treated  of  the  several  causes  which 
r  ^-ypii  "1  ^^'^  recollect  rendered  the  contract  ^between  the  assured  and  the 
L  J  underwriter  in  some  instances  void  at  the  commencement  of  the 

voyage,  and  in  others  where  the  contract  was  voided  by  some  act  of  the  assured 
as  a  breach  or  non-compliance  with  some  warranties,  we  come  now  to  consider 
an  important  branch  of  the  subject  of  marine  insurances,  namely,  the  question 
in  what  cases  by  the  law  of  this  country  there  shall  be  a  return  of  premium 
made  by  the  underwriters  to  the  assured  ? 

I  may,  before  entering  on  this  subject,  refer  the  reader  back  to  Section  1,  of 
the  Second  Part  of  this  Treatise  («)  where  the  subject  of  the  return  of  pre- 
mium in  the  case  of  fraud,  in  the  Courts  of  this  country,  as  well  as  by  some  . 
foreign  ordinances  was  fully  discussed.  Dismissing,  therefore  that  part  of  the 
subject,  I  shall  begin  to  mention  in  what  other  cases  it  is  settled  that  there  is 
to  be  a  return  of  premium. 

1.  The  first  rule  which  is  to  be  mentioned  is  that  where  the  property  has 
been  insured  to  a  larger  amount  than  the  real  value,  the  underwriter  shall  return 
the  overplus  premium,  or  if  it  happen  that  goods  are  insured  to  come  in  certain 
ships  from  abroad,  but  are  not  in  fact  shipped,  the  premium  shall  be  returned. 
And  tliis  principle  which  is  founded  in  reason  and  good  sense  is  exercised  in 
all  countries  where  insurances  are  known  and  is  said  to  be  coeval  with  the  con- 
tract itself,  (b)  Magens  writes  that,  "If  the  ship  be  arrived  after  the  policy  is 
made,  and  the  underwriter  is  acquainted  with  the  arrival,  though  the  assured  is 
not,  the  latter  will  be  entitled  to  have  his  premium  restored  on  the  ground  of 
fraud.  But  if  both  parties  are  ignorant  of  the  arrival,  and  the  policy  is  "lost 
or  not  lost,"  I  think  in  that  case  the  underwriter  should  retain;  because  under 
such  a  policy,  if  the  ship  had  been  lost  at  the  lime  of  subscribing,  he  would 
have  been  liable  to  pay  the  amount  of  his  subscription,  (c) 

Accordingly  in  the  case  of  Martin  v.  Sitivell,  {d)  which  was  an  action  of 
r-  ^^~n  -1  indebitatus  assiimpsU,,  brought  by  the  plaintiff  *for  5/.  received 
L  J  by  the  defendant  to  the  plaintiff's  use,  where  the  general  issue  was 

pleaded,  it  appeared  in  evidence,  that  one  Barkdale  had  made  a  policy  of  insu- 
rance upon  account  for  5/.  premium  in  the  plaintiff's  name,  and  that  he  had 
paid  the  said  premium  to  the  defendant,  and  that  Barkdale  had  no  goods  then 
on  hoard,  and  so  the  policy  was  void.  To  this  action  two  objections  were 
taken  :  1st,  That  it  should  have  been  brought  in  Barkdale's  name,  which  was 
overruled.  2ndly,  That  this  ought  to  have  been  a  special  action  on  the  cus- 
tom of  merchants.  Lord  Chief  Justice  Holt  cited  a  case  of  money  deposited 
upon  a  wager  concerning  a  race,  that  the  party  winning  might  bring  an  action 
of  indebitatus  assumpsit  for  money  received  to  his  use,  for  now  by  the  subse- 
quent matter  it  is  become  as  such.  And  as  to  the  case  in  question,  the  money 
is  not  only  to  be  returned  by  the  custom,  but  the  policy  is  made  originally  void, 
the  party  for  whose  use  it  was  made  having  no  goods  on  board  ;  so  that  by  this 
discovery  the  money  was  received  without  any  reason,  occasion,  or  considera- 

(fl)   Page  625. 

(b)  Loccenius  de  Jure  Marit.  1.  2,  c.  5,  s.  8.      See  Park  Ins.  766. 

(c)  1  Mag.  90.     Sec  the  case  of  Mead  v.  Davison,  ante,  p.  11. 

(d)  1  Show.  156. 


OF    RETURN    OF    PREMIUM.  413 

tion,  and  consequently  it  was  received  originally  to  the  plainlifT's  use.  And 
so  judgment  was  given  for  the  plaintilT. 

The  parties  themselves  frequently  insert  clauses  stating,  that  upon  the  hap- 
pening of  a  certain  event,  there  shall  be  a  return  of  part  of  the  premium,  as  in 
the  case  of  ircdderbvni  and  others  v.  Bell^  [a)  wliich  was  an  insurance  on 
goods  on  board  the  Minorca  at  and  from  Jamaicn  to  London,  at  a  premium  of 
ten  guineas  per  cent.,  to  return  5/.  per  cent,  if  the  ship  sailed  from  the  place 
of  rendezvous  with  convoy  for  the  voyage,  and  arrived.  So  in  the  case  of 
Shnond  v.  Boydell.  (6) 

This  action  was  brought  against  an  underwriter  for  a  return  of  premium. 
The  material  part  of  the  policy  was  in  these  words:  "At  and  from  anv  port 
or  ports  in  Grenada  to  London,  on  any  ship  or  ships  that  shall  sail  on  or 
between  the  1st  oi  May  and  the  1st  of  Augnsf,  1778,  at  18  guineas  per  cent., 
*to  return  8/.  per  cent,  if  she  sails  from  any  of  the  West  India  ^  ^^eo  -i 
Islands  with  convoy  for  the  voyage,  and  arrives."     At  the  bottom  L       '  J 

there  was  a  written  declaration  that  the  policy  was  on  sugars  (the  muscovado 
valued  at  20/.  per  hogshead)  for  account  of  L.  Q.,  being  on  the  first  sugars 
which  shall  be  shipped  for  that  account.  The  ship  The  Hankey  sailed  with 
convoy  within  the  time  limited,  having  on  board  fifty -one  hogsheads  of  musco- 
vado sugar,  belonging  to  L.  Q.  She  arrived  safe  in  the  Downs,  where  the 
convoy  left  her;  convoy  never  coming  further,  and  indeed  seldom  beyond 
Portsmouth.  After  she  had  parted  with  the  convoy,  she  struck  on  a  bank 
called  the  Pan  Sand,  at  Margate,  and  eleven  of  the  fifty-one  casks  of  sugar 
were  washed  overboard,  and  the  rest  damaged.  The  ship  was  afterwards  got 
ofl'  the  bank,  and  proceeded  up  the  river,  arrived  safe  in  the  port  of  London, 
and  was  reported  at  the  Custom-house.  The  sugars  saved  were  taken  out  at 
Margate,  and,  after  undergoing  a  sort  of  cure,  by  a  person  sent  from  town  for 
that  purpose,  they  were  carried  to  London  in  other  vessels ;  and  the  forty 
hogsheads  being  sold,  produced  340/.  instead  of  800/.,  which  was  their  valua- 
tion in  the  policy.  The  defendant  had  paid  into  Court  the  value  of  the  sugars 
lost,  and  a  return  of  eight  per  cent,  on  340/.  The  plaintiflis  insisted  that  they 
were  entided  to  have  8/.  per  cent,  also  returned  on  the  valued  price  of  the 
eleven  hogsheads  of  sugar  which  were  lost,  and  on  the  difference  between  what 
the  remaining  forty  hogsheads  produced,  and  their  valued  price.  At  the  trial 
before  Lord  Mansfield,  the  plaintiffs  had  a  verdict  to  the  full  amount  of  their 
demand.  The  chief  question  upon  the  motion  for  a  new  trial  was,  to  what 
the  word  "arrives"  was  intended  to  apply.'' 

Lord  Mansfield. — "The  ancient  form  of  a  policy  of  insurance,  which  is 
still  retained,  is,  in  itself,  very  inaccurate;  but  length  of  time,  and  a  variety  of 
discussions  and  decisions,  have  reduced  it  to  certainty.  It  is  amazing,  when 
additional  clauses  are  introduced,  that  the  merchants  do  not  take  some  advice 
in  framing  them,  or  bestow  more  consideration  upon  them  themselves.  I  do  not 
recollect  an  addition  made,  *which  has  not  created  doubts  on  the  p  *«=  <  -i 
construction  of  it.     Here  a  word  or  two  more  would  have  rendered  L  J 

the  whole  perfectly  clear.  However,  I  have  no  doubt  how  we  must  construe 
this  policy.  Dangers  of  the  sea  are  the  same  in  time  of  peace  and  of  war  ; 
but  war  introduces  hazards  of  another  sort,  depending  on  a  variety  of  circum- 
stances, some  known,  others  not,  for  which  an  additional  premium  must  be 
paid.  Those  hazards  are  diminished  by  the  protection  of  convoy,  and  if  the 
insured  will  warrant  a  departure  with  convoy,  there  is  a  diminution  of  the 
additional  premium.  If  the  insured  will  not  warrant  a  departure  with  convoy, 
he  pays  the  full  premium,  and  in  that  case  the  underwriter  says,  'If  it  turn 


(a)   1  Camp.  I.  (6)   1  Doug.  268. 


414  OF    RETURN    OF    PREMIUM. 

out  that  the  ship  departs  with  convoy,  I  will  return  part  of  the  premium.'  But 
a  ship  may  sail  with  convoy,  and  he  separated  from  it  by  a  storm,  or  other 
accident,  in  a  day  or  two,  and  lose  its  protection.  On  a  warranty  to  sail  with 
convoy,  that  would  not  be  a  breach  of  the  condition;  but  to  guard  against  that 
risk,  the  insured  adds,  in  policies  of  the  present  sort,  'the  ship  must  not  only 
sail  with  convoy,  but  she  must  arrive  to  entitle  me  to  the  return.'  The  words 
*and  arrives'  do  not  mean  that  the  ship  shall  arrive  in  the  company  of  the 
convoy,  but  only  that  she  herself  shall  arrive.  If  she  does,  that  shews  either 
that  she  had  convoy  the  whole  way,  or  did  not  want  it.  But,  in  the  stipula- 
tion for  the  return  of  premium,  no  regard  is  had  by  the  parties  to  the  condition 
of  the  goods  on  the  arrival  of  the  ship.  The  construction  contended  for  by 
the  defendant,  is  adding  a  comment  longer  than  the  text.  If  it  had  been  meant 
that  no  return  should  be  made,  unless  all  the  goods  arrived  safe,  they  would 
have  said,  'if  the  ship  arrive  with  all  die  goods,'  or  'safely  with  all  the  goods.' 
The  total  or  average  loss  of  the  goods  was  the  subject  of  the  indemnity,  and 
must  be  paid  for  by  the  underwriter.  But  as  to  the  return  of  the  additional 
premium,  whether  the  goods  arrive  safe  or  not,  makes  no  part  of  the  question. 
The  single  principle  which  must  govern  is,  that  in  the  events  which  have  hap- 
pened, the  war  risk  has  been  rated  too  high." 

r  *7FiF;  1  *The  rule  for  a  new  trial  was  accordingly  discharged. 
L  '^^  J  So  also  in  a  later  case  of  Agidlar  and  others  v.  Badgers^  (a) 
where,  in  a  policy  on  freight,  this  clause  was  found,  "to  return  10/.  per  cent, 
if  the  ship  sailed  with  convoy  and  arrived  ;"  it  was  contended  at  the  Bar,  that 
although  the  ship  sailed  with  convoy,  and  although  she  arrived  at  her  port  of 
destination,  yet  as  she  had  been  captured  and  recaptured  during  the  voyage, 
and  had  paid  salvage  to  the  recaptors,  the  plaintiffs  (the  assured)  were  not  enti- 
tled to  a  return  of  premium  within  the  true  construction  of  the  above  clause. 

Lord  Kenyan  delivered  the  unanimous  opinion  of  the  Court :  "I  agree  with 
the  counsel  ior  the  defendant,  that  every  arrival  of  the  ship  at  her  port  of  des- 
tination would  not  be  an  arrival  within  the  fair  construction  of  this  memoran- 
dum;  such,  for  instance,  as  an  arrival  in  the  possession  of  an  enemy  at  a 
neutral  port,  or  an  arrival  at  her  port  in  England  as  the  property  of  other 
persons  after  a  capture.  But  in  order  to  satisfy  the  meaning  of  the  memoran- 
dum, it  should  be  an  arrival  at  her  destined  port  in  the  course  of  her  voyage. 
It  is  now  too  late  to  controvert  the  authority  of  Hamilton  v.  Mendez,  even  if 
we  were  disposed  to  do  so,  which  I  am  not,  where  it  was  holden  that  though 
the  assured  may  abandon,  on  hearing  of  a  capture,  yet  if  they  do  not  abandon, 
and  the  ship  be  afterwards  recaptured,  it  must  be  considered  as  if  she  had 
never  been  out  of  the  possession  of  the  owners.  It  is  eighteen  years  since 
the  case  of  Simond  v.  BoydeJl  was  decided ;  that  case  must  be  well  known  in 
the  commercial  world ;  and  if  the  parties  in  this  case  had  intended  to  make  an 
ao-reement  different  from  that  which  the  words  used  in  this  memorandum  import, 
they  would  have  added  after  arrived,  'safely  from  the  enemy,'  or  some  words 
to  that  effect.  But  the  words  here  used  are  not  equivocal,  and  we  ought  not 
to  depart  from  them :  it  would  be  attended  with  great  mischief  and  inconve- 
nience, if  in  construing  contracts  of  this  kind  we  were  not  to  decide  according  to 
1  ^^^^  words  *used  by  the  contracting  parties.  Suppose  this  question 
L  J  had  arisen  on  a  contract  under  seal,  and  an  action  of  covenant  had 

been  brought,  assigning  as  a  breach  the  non-arrival  of  the  ship  at  the  port  of 
London,  the  answer  that  in  fact  the  ship  did  arrive  there  in  the  course  of  her 
voyage  would  have  been  decisive.  And  if  so,  this  memorandum  must  receive 
the  same  construction  in  this  action.     On  the  grammatical  construction  of  the 


(c)  7  T,  R.  421. 


OF    RETURN    OF    PREMIUM.  415 

words,  which  is  the  safest  rule  to  go  by,  I  am  of  opinion  that  the  verdict  ob- 
tained by  the  plaintiff  ought  not  to  be  set  aside. 

In  a  case  in  the  Common  Pleas,  of  Audley  v.  Duff,  (a)  there  was  the  fol- 
lowing clause  for  a  return  of  premium  in  a  policy  "at  and  from  Oporto  to 
Lynn,  with  liberty  to  touch  at  any  ports  on  the  coast  of  Portugal  to  join 
convoy,  particularly  at  Lisbon,  to  return  6/.  per  cent,  if  she  sail  with  convoy 
from  the  coast  of  Portugal  and  arrive."  The  ship  sailed  from  Oporto  under 
the  protection  of  a  sloop  and  cutter  appointed  to  protect  the  trade  of  that  place 
to  Lisbon,  from  whence  it  was  to  sail  under  a  larger  convoy  to  England.  In 
the  way  to  Lisbon,  the  fleet  was  dispersed,  and  this  ship  ran  for  England  and 
arrived.  It  was  contended  that  this  ship  liad  not  sailed  from  the  coast  of  Por- 
tugal with  convoy.  But  the  Court  held,  that  having  sailed  from  Oporto,  with 
a  convoy  duly  appointed,  and  with  a  bona  fide  intention  to  proceed  to  England, 
though  by  desire  of  the  admiral,  Lisbon  was  to  be  taken  in  the  way,  the  con- 
dition, on  which  the  return  of  premium  was  to  be  made,  had  been  performed. 

If,  therefore,  an  insurance  be  bona  fide  effected  by  several  policies  and  the 
interest  turned  out  to  be  less  than  the  amount  insured  by  the  whole,  there  must 
be  a  return  of  premium  upon  all  the  policies,  and  the  underwriters  must  refund 
rateably  according  to  their  respective  subscriptions.  This  is  not  the  rule  of 
law  in  France,  and  in  many  other  *countries,  for  there  they  look  p  *7Pi7  ~i 
to  the  priority  of  the  dates  of  the  subscriptions;  but  if  several  ^  -^ 

policies  have  the  same  date  they  make  one  policy. 

It  is,  however,  to  be  observed  that  the  above  rule  applies  only  to  the  case  of 
several  policies  effected  before  the  commencement  of  the  risk,  for  where  an 
insurance  has  been  effected  by  one  or  more  policies,  and  the  risk  has  com- 
menced, and  subsequent  policies  are  afterwards  signed,  if  a  loss  were  to  happen 
between  the  signing  of  the  first  and  subsequent  policies,  the  underwriters  on 
the  first  would  be  liable  in  proportion  to  their  subscriptions  to  the  extent  of 
the  whole  sum  insured;  and  therefore  the  risk  having  been  incurred  by  them, 
no  claim  ought  to  be  made  for  a  return  of  premium.  And,  therefore,  the  Court 
of  Exchequer  in  a  very  recent  case  of  Fisk  v.  Masterman,  ip)  decided  that 
where  an  insurance  was  effected  on  the  12th  April,  on  a  cargo  of  cotton,  then 
at  sea,  by  five  several, policies,  at  the  rate  of  fifty  guineas  per  cent.  ;  and  on 
the  13th  April,  news  of  the  vessel's  safety  having  arrived,  a  further  insurance 
was  bond  fide  effected  by  six  different  policies,  at  ten  and  five  guineas  per 
cent. ;  and  the  latter  insurance,  added  to  the  former,  exceeded  in  amount  the 
value  of  the  subject-matter  insured,  but  the  former,  of  itself,  did  not ;  the 
assured  were  entitled  to  a  return  of  premium  on  the  amount  of  the  over  insu- 
rance, to  which  the  underwriters  who  subscribed  the  policies  of  the  13th  April 
were  to  contribute  rateably  in  proportion  to  the  sums  subscribed  by  them 
respectively,  the  amount  of  the  over  insurance  having  first  been  ascertained  by 
taking  into  account  all  the  policies :  but  that  no  return  of  premium  was  to  be 
made  with  respect  to  those  policies  which  had  been  subscribed  on  the  12th. 

Lord  Mansfield,  in  the  case  of  Tyrie  v.  Fletcher,  (r)  which  had  been  tried 
before  his  Lordship  at  Quildhnll,  and  now  came  to  be  argued  in  the  Court 
of  King's  Bench,  Michaelmas  Terra,  1777,  laid  down  the  law  respecting  the 
return  of  premium  in  two  kinds  of  cases.  First,  where  the  risk  had  not  been 
*run  at  all ;  secondly,  where  the  risk  has  once  commenced.  Lord  p  #-j.ee  -i 
Mansfield  said, — "It  was  very  proper  to  save  this  case  for  the  ^  -' 


(a)  2  Bos.  &  Pull.  111.  So  where  the  worJs  were,  "If  she  depart  from  Portugal  and 
arrive."  Everard  v.  Hollingworth,  2  Bos.  &  Pull.  Ill,  in  the  note.  See  Kellner  v.  Le 
Mesurier,  4  East,  396. 

(6)  8  M.  &  W.  165.  (c)  Cowp.  666. 

Vol.  VIL— C  2 


416  OF    RETURN    OF    PREMIUM. 

opinion  of  the  Court;  because,  in  all  mercantile  transactions,  certainty  is  of  much 
more  consequence  than  which  way  the  point  is  decided  :  and  more  especially  so 
in  the  case  of  policies  of  insurance ;  because,  if  the  parties  do  not  choose  to  con- 
tract according  to  the  established  rule,  they  are  at  liberty  between  themselves 
to  vary  it.  This  case  is  stripped  of  every  authority.  There  is  no  case  or 
practice  in  point,  and,  therefore,  we  must  argue  from  the  general  principles 
applicable  to  all  policies  of  insurance.  And,  I  take  it,  there  are  two  general 
rules  established  applicable  to  this  question.  The  first  is,  that  where  the  risk 
has  not  been  run,  whether  owing  to  the  fault,  pleasure,  or  will  of  the  assured, 
or  to  any  other  cause,  the  premium  shall  be  returned ;  because  a  policy  is  a 
contract  of  indemnity.  The  underwriter  receives  a  premium  for  running  the 
risk  of  indemnifying  the  assured,  and,  whatever  cause  it  be  owing  to,  if  he 
does  not  run  the  risk,  tlie  consideration  for  which  the  premium  or  money  was 
put  into  his  hands  fails,  and  therefore  he  ought  to  return  it. 

"Secondly,  another  rule  is,  that  if  the  risk  of  the  contract  of  indemnity  has 
once  commenced,  there  shall  be  no  apportionment  or  return  afterwards.  For 
though  the  premium  is  estimated,  and  the  risk  upon  the  nature  and  length  of 
the  voyage,  yet  though  it  be  only  for  twenty-four  hours,  or  less,  the  risk  is 
run :  the  contract  is  for  the  whole  entire  risk,  and  no  part  of  the  consideration 
shall  be  returned ;  and  yet  it  is  as  easy  to  apportion  for  the  length  of  the  voyage 
as  it  is  for  the  time.  If  a  ship  had  been  insured  to  the  East  Indies^  agreeably 
to  the  terms  of  the  policy  in  this  case,  and  had  been  taken,  twenty- four  hours 
after  the  risk  was  begun,  by  an  American  captor,  there  is  not  a  colour  to  say 
that  there  should  have  been  a  return  of  premium.  80  much,  then,  is  clear, 
and  perfectly  agreeable  to  the  ground  of  determination  of  Stevenson  v.  Snow\  (d) 
r  *  r^Q  "1  ^^^  '"  ^^^^  ^^^^  ^^^  intention  of  *the  parties,  the  nature  of  the 
L  "^'^^  J  contract,  and  the  consequences  of  it,  spoke  two  insurances  and  a 
division  between  them.  The  first  object  of  the  insurance  was  from  London  to 
Halifax;  but  if  the  ship  did  not  depart  from  Portsmouth  with  convoy,  (par- 
ticularly naming  the  ship  appointed  to  be  convoy)  then  there  was  to  be  no 
contract  from  London  to  Halifax.  Why,  then,  the  parties  have  said,  'We 
make  a  contract  from  London  to  Halifax^  but,  on  a  certain  contingency,  it 
shall  only  be  a  contract  from  London  to  Portsmouth:''  that  contingency  not 
happening,  reduced  it,  in  fact,  to  a  contract  from  London  to  Portsmouth  only. 
The  whole  argument  turned  upon  that  distinction.  IjCt  us  see,  then,  what  the 
agreement  of  the  parties  is  in  the  present  case.  They  might  have  insured  from 
two  months  to  two  months,  if  they  thought  proper  so  to  do,  but  the  fact  is 
they  have  made  no  division  of  time  at  all ;  but  the  contract  entered  into  is  one 
entire  contract  from  the  19th  August,  1776,  to  the  19th  August,  1777,  which 
is  the  same  as  if  it  had  been  said  by  the  assured,  'If  you,  the  underwriter, 
will  insure  me  for  twelve  months,  I  will  give  you  an  entire  sum  ',  but  I  will  not 
have  any  apportionment.'  The  ship  sails,  and  the  underwriter  runs  the  risk 
for  two  months.  No  part  of  the  premium  shall  be  returned.  I  cannot  say  if 
there  had  been  a  recapture  within  the  twelve  months  that  the  policy  would  not 
have  revived." 

Aston,  JVilles,  and  Ashurst,  Justices,  were  of  the  same  opinion:  and  a 
nonsuit  was  entered,  (a) 

In  the  case  of  Oo77i  and  others  v.  Bruce,  (b)  where  an  insurance  had  been 
made  on  goods  "at  and  from  a  port  in  Russia  to  London,'^  by  an  agent  resid- 


(rf)  3  Burr.  1237. 

(a)  In  this  case  the  ship  was  warranted  «'free  of  American  capture  and  seizure."     She 
was  taken  in  about  two  months  after  she  sailed  by  an  American  privateer. 

(b)  12  East,  225. 


OF    RETURN    OF    PREMIUM.  417 

ing  here,  for  a  Russian  subject  abroad,  which  insurance  was,  in  fact,  made 
after  the  commencement  of  hostilities  by  Russia  against  this  country,  but 
before  tlie  knowledge  of  it  here,  and  after  the  ship  had  sailed,  and  had  been 
seized  and  confiscated :  it  was  held  that  the  policy  was  void  in  its  inception ; 
but  Lord  Ellenborough,  *C.  J.,  considered  that  the  plaintiffs  were  ^  ^^^n  1 
entitled  to  recover  back  the  premium,  as  money  had  and  received  L  J 

by  the  defendants  to  their  use  witliout  consideration,  and  having  made  the 
insurance  without  any  consciousness  of  its  illegality  at  the  time  ;  and  the  plain- 
tiff accordingly  recovered  for  the  amount.  A  motion  was  afterwards  made  to 
set  the  verdict  aside,  and  to  enter  a  nonsuit. 

Lord  Ellenborough,  C.  J.,  said. — "Without  doubt,  if  the  party  making 
the  insurance  know  it  to  be  illegal  at  the  time  he  could  recover ;  but  here  the 
plaintiffs  had  no  knowledge  of  the  commencement  of  hostilities  by  Russia 
when  they  made  the  insurance,  and  therefore  no  fault  is  imputable  to  them  for 
entering  into  the  contract:  they  could  never  have  derived  any  benefit." 

Le  Blanc,  J. — "The  period  to  look  to,  as  to  the  legality  of  the  contract,  is 
the  time  when  it  was  made;  and  then  the  subjects  of  Russia  had  become  ene- 
mies of  this  country,  and  it  was  no  longer  competent  to  the  subjects  of  this 
country  to  enter  into  such  a  contract.  But  no  blame  attaches  to  the  plaintiffs, 
who  were  ignorant  of  the  fact  at  the  time,  and  therefore  they  are  entitled  to  a 
return  of  premium. 

In  the  case  of  Furtado  v.  Rogers,  (a)  which  was  fully  treated  in  a  previous 
part  of  this  Treatise,  (b)  Lord  Alvanley,  who  delivered  the  judgment,  says 
at  the  close  of  it,  "The  plaintiff  is  not  entitled  to  a  return  of  premium  because 
the  contract  was  legal  at  the  time  the  risk  commenced,  and  was  a  good  insu- 
rance against  all  other  losses,  but  that  arising  from  capture  by  the  forces  of 
Great  Britain.'''' 

In  Henry  and  others  v.  Staniforth,  (c)  which  was  an  action  on  a  policy  of 
insurance  "at  and  from  Riga  to  Great  Britain:^''  with  a  count  for  money  had 
a^d  received. 

Two  questions  arose  at  the  trial  before  Lord  Ellenborough,  C.  J.,  Mich. 
Term,  56  Geo.  3. 

1st.  Whether  the  voyage  was  properly  legalized,  this  country  having  been 
then  at  war  with  Russia? 

*2nd.   Whether  the  premium  could  be  recovered  back. ^  P    ^<y(i\     ~i 

Lord  Ellenborough. — "I  think  it  is  impossible  to  say  that  this  L  J 

adventure  which  commenced  on  the  10th  September,  was  legalized  by  a  license 
dated  the  7th  October,  to  remain  six.  months  from  the  date  thereof."  But  I  am 
of  opinion  that  the  underwriters  have  no  right  to  retain  the  premium.  Here 
no  contravention  of  the  law  was  meditated  by  any  of  the  parties  concerned.  If 
the  voyage  had  been  retarded,  or  the  license  but  a  short  time,  all  would  have 
been  right.  On  the  20th  of  Noveinber,  it  was  not  known  in  London  when 
the  ship  sailed  from  Riga,  and  the  policy  was  made  under  an  ignorance  of  the 
facts.  The  risk  was  believed  to  be  legal.  The  underwritei's  have  not  suc- 
ceeded to  shew  that  they  have  committed  any  crime  in  receiving  the  premium, 
and,  therefore,  they  must  restore  it  to  the  assured,  who  have  failed  in  obtaining 
the  indemnity  which  it  was  meant  to  purchase. 

Verdict  accordingly,  confirmed  afterwards  by  the  Court  of  King's  Bench. 

Also  in  the  case  of  Routli  v.  Thompson,  (a)  which  has  already  been  treated 
of  in  this  Treatise  on  a  different  subject.  Lord  Ellenborough,  C.  J.,  at  the 
conclusion  of  his  judgment,  says,   "The  question  then  arises,  whether  the 

(a)  3  B.  &  P.  191.  (&)  Ante,  p.  655. 

(c)  4  Camp.  269.  (a)   1 1  East,  428,  ante,  p.  57. 


418  OF    RETURN    OF    PREMIUM. 

plaintiff  has  any  riglit  to  recover  back  the  premium?  and  as  there  was  no  fraud 
in  the  captors  in  making  the  insurance ;  as  there  was  no  illegality  in  the  voyage 
or  insurance;  and  as  the  resistance  of  the  underwriters  to  the  claim  upon  the 
policy  proceeds  on  the  ground  that  there  was  no  risk,  the  plaintiff  is  entitled  to 
his  premium,  and  the  verdict  be  entered  accordingly." 

In  the  case  of  Lowry  and  others  v.  Bourdiai^  (h)  which  has  been  stated 
fully  at  a  previous  part  of  this  Treatise,  (c)  to  which  the  reader  is  referred  to 
for  Lord  Almifi/ieUrs  judgment,  and  where  the  insurance  was  on  the  captain's 
bond  to  the  plaintiff,  which  was  held  to  be  a  wagering  policy,  and  void  by  the 
act  19  Geo.  2;  it  was  likewise  held  that  the  risk  having  been  run  tlie  assured 
could  not  recover  back  the  premium. 

r  »'yfi9  1  *^^^  ^^^^  ^^^^  ^^  Hastelow  v.  Jackson,  (a)  Judge  Litlledale  says, 
L  J  "If  two  parties  enter  into  an  illegal  contract,  and  money  is  paid 

upon  it  by  one  to  the  other,  that  money  may  be  recovered  back  before  the  exe- 
cution of  the  contract  but  not  afterwards." 

The  Court,  in  the  case  of  Loivry  v.  Bourdieir,  proceeded  upon  the  distinc- 
tion between  contracts  executed  and  executory,  although  it  must  be  confessed, 
that  the  case  about  to  be  quoted,  which  was  only  decided  suddenly  at  nisi  prills, 
is  a  good  deal  shaken  by  the  subsequent  decision  of  Andrce  v.  Flelrher.  [b) 

It  was  an  action  in  the  case  of  IVharton  v.  J)c  hi  JRlve,  (c)  brought  upon  two 
wagers;  one  of  20/.  5s.  to  100/.,  and  the  other  to  13/.  2*.  0(/.  to  30/.,  that  the 
colonies  of  North  America  Avould  be  admitted  or  acknowledged  independent 
states,  by  some  public  official  act  or  instrument  made  or  executed,  on  the  part 
of  the  King  or  government  of  France,  at  some  time  on  or  between  the  1st  of 
February  and  the  1st  of  April,  1778,  both  days  inclusive.  The  defendant 
pleaded  non  assumpsit.  Upon  the  opening  of  this  case.  Lord  Mansfield 
directed  the  plaintiff  to  be  nonsuited.  But  the  counsel  for  the  plaintiff  insisted, 
that  he  was  entitled  to  a  verdict  for  the  premium  on  the  general  count  in  the 
declaration,  for  money  had  and  received  to  his  use,  which  his  Lordship  per- 
mitted, on  the  ground  of  the  contract  being  void,  and  of  the  defendant  having 
money  in  his  hands,  which  he  ought  not  to  retain.  For  the  defendant,  it  was 
said,  that  he  was  entitled  to  keep  the  premium:  and  the  case  of  Lowry  v. 
Bourdicii  was  cited ;  but  Lord  Mansfield  thought  it  did  not  apply,  as  in  that 
case  the  risk  had  been  run.  The  point  there  decided  was,  that  an  insurance 
being  made  without  interest,  and  the  premium  paid,  the  insured  shall  not  recover 
back  the  premium  after  the  ship  has  arrived  safe.  And  this  upon  the  distinc- 
tion, that  the  contract,  though  not  a  legal  one,  was  executed  before  the  relief 
was  applied  for,  and  no  longer  executory. 

P  *7pq  -|  *I"  another  case  of  Mackenzie  and  others  v.  Di(ff,  (a)  the 
L  J  assured,  having  been  nonsuited  at  the  trial,  on  the  ground  that  the 

goods  insured  were  prohibited,  and  that  the  shipment  of  them,  under  the  cir- 
cumstances disclosed,  was  a  violation  of  the  acts  of  navigation,  insisted  that 
they  were  entitled  to  a  return  of  premium,  and  a  motion  was  made  to  set  aside 
the  nonsuit.  Had  this  case  proceeded,  a  decision  of  the  precise  question, 
whether  the  premium  is  recoverable  in  cases  of  insurance  effected  contrary  to 
the  statute  law  of  the  realm,  without  reference  to  the  distinction  between  con- 
tracts executed  and  executory,  would  probably  have  been  obtained ;  but  unfor- 
tunately the  rule  was  discharged  upon  a  collateral  point,  and  the  main  question, 
therefore,  remained  undecided. 


{h)  Doug.  468.  (c)  Ante,  p.  72. 

(a)  8  B.  &  C.  227.     See  Paterson  v.  Powell,  9  Bing.  320.     Roebuck  v.  Hamerton, 
Cowp.  737.  (/;)  3  T.  R.  266. 

(c)  Mich.  Vac.  1782,  at  Guild.  Park  Ins.  780. 
(a)  B.  R.  Hil.  Term,  1799.     Park  Ins.  780. 


OF    RETURN    OF    PREMIUM.  419 

And  in  another  case  of  Vandyck  v.  Ilervitt,  [b)  the  Court  of  Kind's  Bench, 
after  a  consideration  of  all  the  cases,  held,  that  where  a  premium  had  been  paid 
on  a  policy  to  cover  a  trading  with  the  enemy,  though  the  insurance  was  void 
and  the  underwriters  not  compellable  to  pay  the  loss,  it  could  not  be  recovered 
back. 

Lord  Kenyon,  in  giving  judgment,  observed  that  it  was  impossible  to  distin- 
guish this  case  from  the  common  one  of  a  smuggling  transaction.  Where  the 
vendor  assists  the  vendee  in  running  the  goods  to  evade  the  laws  of  the  country, 
he  cannot  recover  back  the  goods  themselves,  or  the  value  of  them.  Tiie  ruie 
has  been  settled  at  all  times,  that  where  both  parties  are  in  pari  delicto,  which 
is  the  case  here,  potior  est  conditio  possidentis. 

In  the  case  of  Morck  and  another  v.  Mel,  (c)  a  foreigner  having  made  an 
insurance  upon  a  Danish  ship  at  and  from  Bengal  (in  which  province  there 
are  some  Danish  settlements)  to  Copenhagen,  and  the  ship  having  loaded  at 
Calcutta,  contrary  to  the  Navigation  Act  of  12  Car.  2,  c.  18,  s.  1.  Lord 
Alvanley  and  Mr.  Justice  Rooke,  and  Mr.  Justice  Chambre,  *relied  p  ^i-jaA  -^ 
upon  the  cases  of  Andrce  v.  Fletcher,  and  Vandyck  v.  Heiaitt,  (a)  L  J 

and  laid  down  the  principle  of  their  decision  against  the  assured's  right  to 
recover  the  premium,  as  extracted  from  all  the  cases,  to  be,  that  no  man  can 
come  into  a  British  Court  of  Justice  to  seek  the  assistance  of  the  law,  when 
he  founds  his  claim  upon  a  contravention  of  the  British  laws.  And  a  distinc- 
tion having  been  attempted  at  the  Bar,  on  the  ground  of  the  party  interested 
being  a  foreigner,  it  was  answered,  that  that  could  make  no  difference,  as  the 
Navigation  Laws  were  parliculaily  aimed  against  foreigners  ;  and  that  we  ought 
not  to  relax  the  rigour  of  our  great  political  regulations  in  favour  of  foreigners 
offending  against  them. 

So  again  in  the  case  Lubbock  v.  Potts,  (b)  where  an  insurance  on  colonial 
produce  froni  tlie  British  West  Indies  to  Gibraltar  was  holden  to  be  void,  as 
a  violation  of  the  acts  of  navigation,  the  Court  of  King's  Bench,  consisting  of 
Lord  EllenborougK  and  Judges  Grose,  Laiorence,  and  Le  Blanc,  relying  on 
all  the  above  cases,  which  were  quoted  from  the  Bar,  decided  that  the  premium 
could  not  be  recovered. 

But  where  the  policy  is  void,  merely  because  the  insurance  is  made  upon  a 
subject-matter,  not  insurable,  as  for  instance,  upon  money  advanced  to  the  cap- 
tain abroad,  the  assured  may  recover  the  premium,  Siffken  v.  Allnutt.  (c) 

So  in  a  case  of  Hunter  v.  JVright,  [d)  which  was  an  insurance  on  a  ship 
for  a  year,  in  which  the  underwriter  stipulated  to  return  a  part  of  the  premium, 
*'if  sold  or  laid  up,  for  every  uncommenced  month."  Lord  Tenterden  held, 
that  where  the  vessel  had  been  laid  up  for  several  months  within  the  year,  but 
was  employed  again  within  the  year,  that  was  not  such  a  laying  up  as  to  entitle 
the  assured  to  a  return  of  premium. 

*In  another  case  of  Loraine  v.  Thomlinson,  (a)  the  Court  of  ^  *7R5  ~\ 
King's  Bench  adopted  the  same  rule  of  decision,  where  the  ship  L  J 

was  insured  for  twelve  months,  and  the  risk  ceased  at  the  end  of  two.  A  dis- 
tinction was  attempted  to  be  made,  because  in  this  case,  the  whole  premium 
18/.  was  acknowledged  to  be  received  from  the  insured  at  the  rate  of  fifteen 


(6)   1  East,  96.     See  Potts  v.  Bell,  ante,  p.  644. 

(c)  3  B.  &  P.  35.  (fl)  Ante,  p.  763. 

lb)  7  East,  449.     Ante,  p.  659. 

(c)  1  M.  &  S.  39.  In  the  case  of  Hogg  v.  Horner,  ante,  p.  241,  Lord  Kenyon  being 
of  opinion  that  there  was  a  deviation,  it  veas  insisted  that  the  assured  had  a  right  to  return 
of  premium;  but  Lord  Kenyon  thought  there  was  an  inception  of  the  risk  "  at,"  and  the 
contract  being  entire,  there  could  be  no  return  of  premium. 

{d)  10  B.  &  C.  714.  (n)  Doug.  585. 


420  OF    RETURN    OF    PREMIUM. 

shillings  per  month :  and  this  it  was  insisted,  evidently  shewed  the  parties 
intended  the  risk  to  continue  only  from  month  to  month.  This  objection  was, 
however  overruled :  the  Court  being  of  opinion,  that  the  case  of  Tyrie  v. 
Fletcher  ip)  decided  this  j  and  that  the  15s.  per  month  was  only  a  mode  of 
computing  the  gross  sum.     The  case  was  in  substance  as  follows : 

It  was  an  action  tried  before  Lord  Loughborough,  at  the  assizes  for  the 
county  of  Nor  thumb  erland,  in  which  the  plaintiff  declared, — That  the  defend- 
ant, in  consideration  that  the  plaintiff  at  his  request  had  underwriten  several 
policies  of  insurance  as  to  certain  sums  of  money  therein  subscribed  against 
his  name,  on  the  ships,  merchandises,  and  other  things  therein  respectively 
specified,  without  receiving  tlie  full  premiums  therein  mentioned,  undertook  and 
promised  to  pay  the  plaintiff  so  much  money,  as  tlie  premiums  therein  men- 
tioned to  be  paid  to  him  amounted  to,  with  an  averment  that  they  amounted  to 
40/.  There  was  another  count  for  40/.  for  money  had  and  received  by  the 
defendant  to  the  plaintiff's  use.  The  defendant  pleaded  7ion  assumpsit  as  to 
all,  except  the  sum  of  3/.,  upon  which  plea  issue  was  joined;  and  as  to  the 
3/.,  he  pleaded  a  tender,  and  paid  that  sum  into  Court.  Upon  the  plea  of  ten- 
der, issue  also  was  joined.  The  jury  found  a  verdict  for  the  defendant  upon 
the  tender,  and  for  the  plaintiff  upon  the  other  issue,  for  the  sum  of  15/.  sub- 
ject to  the  opinion  of  the  Court,  whether  he  was  entided  to  recover  that  sum 
of  15/.  or  the  sum  of  3/.  only,  upon  a  case  which  stated  in  effect,  as  follows : 
The  plaintiff  had  underwritten  200/.  on  a  policy  effected  at  Newcastle,  (which 
r-  ^^(-ft  -]  was  set  forth  verbatim  in  the  case)  whereby  the  ship  the  Cholle- 
L  -^  ford  was  *insured  against  capture  by  the  enemy  for  twelve  months, 

in  the  coasting  trade  between  Leith  and  the  Isle  of  JVight ;  beginning  the  13th 
of  March,  1779,  and  ending  the  13th  of  the  same  month,  1780.  In  the  body 
of  the  policy  it  was  stated,  "That  the  assurers  confessed  themselves  paid  the 
consideration  due  unto  them  by  the  assured,  at  and  after  the  rate  of  15s.  per 
cent,  per  month.  At  the  bottom,  opposite  to  the  plaintiff's  subscription,  was 
written,  "Premium  received  16th  of  March,  1779;"  and  on  the  back  was 
indorsed,  '■''Newcastle,  15th  of  March,  1779.  Mr.  John  Gaid  Thomliiuon, 
on  his  ship  the  Cholleford,  himself  master,  for  twelve  months,  in  the  coasting 
trade,  at  and  between  Leith  and  the  Isle  of  f Fight,  beginning  the  13th  of 
March,  1779,  and  ending  the  12th  of  March,  1780.  Enemy  only.  At  15s. 
per  cent,  per  month,  18/."  The  premium  Avas  not  paid,  though  expressed  in 
the  policy  to  have  been  paid,  it  being  the  usage  in  Newcastle  not  to  pay  the 
premium  at  the  time  of  making  the  insurance :  but  at  various  times  after  the 
policies  are  effected,  and  sometimes,  not  till  twelve  months  after.  The  ship 
was  lost  in  a  storm,  within  the  first  two  of  the  twelve  months  for  which  the 
insurance  was  made,  and  the  defendant  tendered  to  the  plaintiff  3/.  as  the  pre- 
mium for  two  months.  The  case  then  states  contradictory  evidence  given  by 
witnesses  on  both  sides,  as  to  what  had  been  done  at  Newcastle  in  similar  cases  : 
but  which  I  forbear  to  set  down;  because  the  Court  of  King's  Bench  was 
afterwards  of  opinion,  that  it  ought  not  to  have  been  received. 

After  the  counsel  for  the  defendant  had  been  heard,  the  plaintiff's  counsel 
was  prevented  by  the  Court  from  proceeding. 

Lord  Mansfield. — "This  is  a  mere  question  of  construction  on  the  face  of 
the  instrument,  and  therefore  parol  evidence  should  not  have  been  admitted  to 
explain  it.  It  is  an  insurance  for  twelve  months,  for  one  gross  sum  of  18/. 
They  have  calculated  this  sum  to  be  at  the  rate  of  15s.  per  month.  But  what 
P  *7f«7  n  '^^^^  ^o  ^^  P-^i^^  down?  Not  15.v.  for  the  first  month,  and  so  from 
L  J  month  to  month;  but  18/.  at  once.     *Two  cases  have  been  men- 


{b)  Ante,  p.  757. 


OF    RETURN    OF    PREMIUM.  421 

lioned.  Stevenson  v.  Snow  was  decided  on  the  ground  of  there  being  two 
voyages.  Tyrie  v.  Fletcher  is  directly  in  point  against  the  defendant,  (a) 
There  are  two  principles  in  these  cases — 1st,  If  the  risk  has  never  begun,  the 
whole  premium  is  to  be  returned,  because  there  was  no  consideration ;  2ndly, 
When  the  risk  has  begun  there  shall  never  be  a  return,  although  the  ship 
should  be  taken  in  twenty-four  hours." 

The  rest  of  the  Court  concurred,  and  the  postea  was  delivered  to  the  plaintifT. 

A  rule  had  been  obtained  to  show  cause  why  there  should  not  be  a  new  trial 
in  a  case,  which  had  come  on  before  Lord  Mansfield  at  Guildhnll,  when  the 
jury  found  a  verdict  for  the  defendant,  Bermon  v.  Woodbridf^e.  [b]  The  case 
was  this :  It  was  an  action  on  a  policy  of  insurance,  on  the  French  ship  Le 
Pactole,  and  her  cargo,  and  the  voyage  was  described  in  the  policy  in  the  fol- 
lowing words:  "At  and  from  Honfleur  to  the  coast  of  Angola,  tluring  her 
stay  and  trade  there,  at  and  from  thence  to  her  port  or  ports  of  discharge  in  St. 
Domingo,  and  at  and  from  St.  Domingo  back  to  Honfleur.''''  The  clause 
respecting  the  premium  was  as  follows  :  "Slaves  valued  at  eight  hundred  livres 
Tournois  per  head;  the  ship  at  1,450/.  sterling;  other  goods,  &c.,  as  interest 
may  appear,  at  a  premium  of  eleven  per  cent."  The  ship  sailed  to  Angola, 
and  from  thence,  after  staying  some  time  there,  to  the  West  Indies.  On  her 
way  to  Angola  she  put  in  at  Cayenne,  on  the  coast  of  America,  and  from 
Cayenne  went  to  Martinico,  confessedly  out  of  the  way  to  St.  Domingo.  In 
this  cause  the  first  question  was  a  question  of  fact,  not  material  to  our  present 
inquiry,  viz  :  Whether  the  course  taken  was  a  deviation,  or  not,  from  the  voy- 
age insured.''  After  all  the  evidence  had  been  heard,  the  jury  thought  it  was, 
and  accordingly  found  a  verdict  for  the  defendant.  Upon  their  declaring  this 
opinion,  the  counsel  for  the  plaintiff  insisted,  that  as  there  was  a  count  in  the 
declaration  for  money  had  and  received,  *the  voyage  insured  ought  ^  *7co  "i 
lo  be  considered  as  composed  of  three  distinct  parts  of  voyages,  L  -^ 

namely,  from  Honfleur  to  Angola;  2ndly,  from  Angola  to  St.  Domingo; 
and  3rdly,  from  St.  Domingo  to  Honfleur ;  and  that,  as  the  voyage  from  St. 
Domingo  to  Honfleur  had  never  commenced,  the  premium  ought  to  be  appor- 
tioned, and  a  return  made  of  that  part  which  was  paid  to  insure  the  risk  from 
St.  Domingo  to  Honfleur.  Lord  Mansfleld  took  the  opinion  of  the  jury  upon 
that  point  also ;  and  they  were  clear  there  ought  to  be  no  return.  Next  day, 
however,  his  Lordship  said,  he  had  turned  that  question  in  his  mind,  and  that 
he  entertained  some  doubts  upon  it,  and  as  it  was  a  question  of  law,  desired 
Mr.  Lee  to  move  a  new  trial  on  that  ground.  It  was,  however,  afterwards 
moved  on  both  grounds,  namely.  On  the  question  of  fact,  whether  the  devia- 
tion was  wilful  ?  and  2ndly,  On  the  question  of  law,  whether,  supposing  it 
wilful,  there  ought  to  be  a  return  of  premium.^ — These  questions  were  fully 
discussed  by  three  advocates  on  each  side ;  and  the  Court  also  took  time  to 
deliberate  upon  them  ;  after  which  the  Lord  Chief  Justice  delivered  the  unani- 
mous opinion  of  the  whole  Court. 

Lord  Mansfield,  after  stating  that  upon  the  question  of  fact,  they  were  per- 
fectly satisfied  with  the  verdict  of  the  jury,  proceeded  thus:  "If,  however,  the 
plaintiff  should  succeed  on  the  second  point,  the  determination  would  virtually 
allow  him  a  new  trial  on  the  whole  of  the  cause,  because  no  special  case  was 
reserved.  But,  on  the  fullest  consideration,  and  after  looking  into  all  the  cases 
(though  my  opinion  has  fluctuated.)  we  are  now  all  clearly  of  opinion,  that  there 
ought  not  to  be  any  return.  The  question  depends  upon  this :  Whether  the 
policy  contains  one  entire  risk  on  one  voyage,  or  whether  it  is  lo  be  split  into 
six  different  risks?  for,  by  splitting  the  words,  and  taking  "at"  and  "from" 

(a)  Ante,  p.  757.  (6)  Doug.  781. 


422  OF    RETURN    OF    PREMIUM. 

separately  it  will  make  six,  viz:  1st,  At  Honjlcur ;  2(1,  From  Honfieur  to 
Angola;  3tl,  At  Angola^  Sic.  The  principles  are  clear.  Where  the  risk  has 
never  begun,  there  must  be  a  return  of  premium;  and  if  the  voyaofcs,  in  this 
r  *7fiQ  1  case,  are  distinct,  the  *risk  from  Sf.  Domingo  to  Honjitxir  never 
L  J  began.     On  the  other  hand,  if  the  risk  has  once  begun,  you  cannot 

sever  it,  and  apportion  the  premium.  In  an  insurance  upon  a  life,  with  the 
common  exceptions  of  suicide,  and  the  hands  of  justice,  if  the  party  commit 
suicide,  or  is  executed  in  twenty-four  hours,  there  shall  be  no  return.  The 
case  is  the  same  if  a  voyage  insured  is  once  begun.  Is  this  one  entire  risk.'' 
The  insured  and  insurers  consider  the  premium  as  an  entire  sum  for  the  whole, 
without  division:  it  is  estimated  on  the  whole  at  11/.  per  cent.  And,  which 
is  extremely  material,  there  is  no  where  any  contingency,  at  any  period,  out  or 
home,  mentioned  in  the  policy,  which  happening  or  not  happening,  is  to  put 
an  end  to  the  insurance.  The  argument  must  be,  that,  if  the  ship  had  been 
taken  between  Honfleiir  and  Angola,  there  must  have  been  a  return.  By  an 
implied  warranty,  every  ship  must  be  seaworthy  when  she  first  sails  on  the 
voyage  insured,  but  she  need  not  continue  so  throughout  the  voyage;  so  that, 
if  this  is  one  entire  voyage,  if  the  ship  was  seaworthy  when  she  left  Honjleiir, 
the  underwriters  would  have  been  liable,  though  she  had  not  been  so  at  Angola, 
&c.  ;  but  according  to  the  construction  contended  for  on  behalf  of  the  plain- 
tiff, she  must  have  been  seaworthy,  not  only  at  her  departure  from  Honfieur, 
but  also  when  she  sailed  from  Angola,  and  when  she  sailed  from  St.  Domingo. 
The  cases  of  Stevenson  v.  Snoiv,  (rf)  and  Bond  v.  Nutt,  (e)  were  quite  differ- 
ent from  this.  They  depended  upon  diis,  that  there  was  a  contingency  specified 
in  the  policy,  upon  the  not  happening  of  which  the  insurance  would  cease.  In 
Stevenson  v.  Snow,  it  depended  on  the  contingency  of  the  ship  sailing  with 
convoy  from  Portsmouth,  whether  there  should  be  an  insurance  from  that 
place.  This  necessarily  divided  the  risk,  and  made  two  voyages.  In  Bond 
v.  Nutt,  it  was  held,  that  there  Avere  two  risks,  upon  the  same  principle.  "At 
Jamaica,'"  was  one;  the  other,  viz:  the  risk  "from  Jamaica,''''  depended  on 
P  *77A  -1  the  contingency  of  the  ship  having  sailed  on  or  *before  the  1st  of 
•-  J  August :  that  was  a  condition  precedent  to  the  insurance  on  the 

voyage  from  Jamaica  to  London.  The  two  cases  of  Tyrie  v.  Fletcher,  [a) 
and  Loraine  v.  Thojnlinson,  (6)  are  very  strong,  for,  if  you  could  apportion 
the  premium  in  any  case,  it  would  be  in  insurances  upon  time.  Therefore, 
on  very  full  consideration,  we  think  this  one  entire  risk,  one  voyage,  and  that 
there  can  be  no  return  of  premium."     The  rule  was  discharged. 

In  the  case  of  Meyer  v.  Gregson,  (c)  which  was  an  action  for  return  of  pre- 
mium, tried  before  Mr.  Justice  JVilles,  on  the  Northern  Circuit,  where  a  ver- 
dict had  been  given  for  the  plaintiff,  upon  a  motion  to  set  aside  the  verdict,  and 
to  enter  a  nonsuit,  a  decision,  similar  to  that  of  Bermo7i  v.  JVoodhridge  was 
made.  The  insurance  was  "at  and  from  Jamaica  to  Liverpool,  warranted  to 
sail  on  or  before  the  1st  o[  August,  premium  twenty  guineas  percent,  to  return 
eight,  if  she  sailed  with  convoy."  The  ship  did  not  sail  till  September,  and 
was  lost.  The  jury  apportioned  the  premium,  and  gave  the  plaintiff  a  verdict 
for  eight  guineas,  the  defendant  having  paid  eight  for  the  convoy  into  Court, 
which  was  allowing  four  for  the  risk  run  by  the  defendant  at  Jamaica. 

Loi'd  Mansfield. — "It  would  be  endless  to  go  into  inquiries  about  the  risk 
at  Jamaica.  It  appears  on  the  evidence  to  be  different  on  difl'erent  sides  of  the 
island.     Besides  the  parties  have  divided  the  risk,  with  respect  to  convoy ;  for 


{(1)  Ante,  p.  759.  (e)   Ante,  p.  672. 

(a)  Ante,  p.  757.  {b)  Ante,  p.  765. 

(c)  B.  K.  Easter  T.  24  Geo.  3.     Park  Ins.  795. 


OF    RE-ASSURANCE    AND    DOUBLE    ASSURANCE.  423 

it  is  a  premium  of  twenty  guineas  to  return  eitjflit,  if  she  sail  with  convoy:  hut 
there  is  an  ahsohite  warranty  as  to  the  saiUng,  and  nolhinir  said  of  the  premium." 
Mr.  Justice  Willes  thought  the  premium  should  be  apportioned. 
Mr,  Justice  Ashurst  and  Mr.  Justice  Ihdicr  agreed  witli  Lord  Mannfield^ 
the  hitter  observing,  that  as  the  parties  liave  not  considered  it  as  two  risks,  nor 
estimated  the  risk  at  Jamaica,  the  Court  cannot  do  it  for  them.  In  all  the 
*insurances  from  Jamaica,  the  policy  runs  "at  and  from,"  and  p  ^._^„. 
though  in  many  instances,  the  voyage  has  not  begun,  yet  there  L  '  J 
never  was  an  idea  of  the  premium  being  returned,  and  that  no  usage  was  found 
by  the  jury.  The  rule  for  entering  the  judgment  of  nonsuit  was  made  absolute. 
In  another  case  of  Gale  v.  Machell,  {a)  upon  an  insurance  "at  and  from 
any  port  or  ports  in  Jamaica  to  I^ondon,  following  and  commencing  on  her 
first  arrival  there,  warranted  to  sail  with  convoy  from  the  place  of  rendezvous 
to  Great  Britain,''^  the  same  questions  were  again  agitated.  But  as  the  counsel 
diflered  upon  the  evidence  given  at  the  trial,  the  main  question  was  not  fully 
discussed  by  the  Court,  but  was  sent  back  to  a  new  trial. 

And  in  the  case  of  Long  v.  Jlllen,  (b)  which  was  an  action  for  a  return  of 
the  premium.  The  policy  was  "at  and  from  Jamaica  to  London,  warranted 
to  depart  with  convoy  for  the  voyage,  and  to  sail  on  or  before  the  1st  of  Jlus^ust, 
upon  goods  on  board  a  ship  called  the  Jamaica,  at  a  premium  of  twelve  guineas 
per  cent."  The  ship  sailed  from  Jamaica  to  L,ondon  on  the  31st  July,  1782, 
but  without  any  convoy  for  the  voyage.  At  the  trial  before  Lord  Mansfield, 
the  jury  found  a  verdict  for  the  plaintiff,  subject  to  the  opinion  of  the  Court 
upon  a  case  stating  the  fiicts  already  mentioned.  In  addition  to  which  they 
expressly  find,  that  it  is  "the  constant  and  invariable  usage  in  an  insurance  at 
and  from  Jamaica  to  London,  warranted  to  depart  with  convoy,  or  to  sail  on 
or  before  the  1st  of  Angnst,  when  the  ship  does  not  depart  with  convov,  or 
sails  after  the  1st  of  August,  to  return  the  premium,  deducting  one-half  per 
cent." 

Lord  Mansfield. — "An  insurance  being  on  goods  warranted  to  depart  with 
convoy,  the  ship  sails  without  convoy,  and  an  action  is  brought  to  recover  the 
premium.  The  law  is  clear,  that  if  the  risk  be  commenced,  there  shall  be  no 
return.  Hence  questions  arise  of  distinct  risks  insured  by  one  policy  or  instru- 
ment. My  opinion  has  been  to  divide  the  risks.  *I  am  aware  p  ^.7-70  -1 
that  there  are  great  difficulties  in  the  way  of  apportionments,  and  L  J 

therefore  the  Court  has  sometimes  leaned  against  them.  But  where  an  express 
usage  is  found  by  the  jury,  the  difficulty  is  cured,  (c)  They  offered  to  prove 
the  same  usage  as  to  the  TVest  hidies  in  general,  but  I  stopped  them,  and  con- 
fined the  evidence  to  Jamaica.'''' 

The  rest  of  the  Court  concurred,  and  the  postea  was  delivered  to  the  plaintiff. 


SECTION  V. 

OF    RE-ASSURANCE    AND    DOUBLE    ASSURANCE. 

It  is  necessary,  in  a  Treatise  which  proposes  to  treat  of  the  principles  of 
the  law  of  Marine  Insurances,  not  to  omit  any  part  of  the  subject,  which  is 
known  and  acknowledged  by  the  law  of  England :  and  I,  therefore,  proceed 


(a)  B.  R.  East.  25  Geo.  3.    Park  Ins.  797.      (b)  B.  R.  East.  T.  25  Geo.  3.     Id. 
(c)  See  Meyer  v.  Gregson,  ante,  p.  770. 


424  OF    RE -ASSURANCE    AND    DOUBLE    ASSURANCE. 

to  state  the  law  applicable  to  this  branch,  which  is  the  head  of  this  section,  of 
the  subject  of  which  I  proposed  to  consider  the  principles.  I  must,  however 
remark,  in  the  outset,  that  though  the  law  upon  this  subject  is  well  settled  and 
established,  it  does  not  appear  in  the  present  day,  to  hold  any  place  among  the 
questions  on  this  subject  which  constantly  are  being  brought  under  the  con- 
sideration of  the  Courts  of  Law ;  and  what  proves  this  more  strongly,  is  the 
fact  that  there  are  not,  I  believe,  any  recent  cases  to  be  found  upon  the  subject. 
The  late  Mr.  Justice  Park,  whose  system  of  Marine  Insurance  is  the  best 
guide  to  any  one  who  wishes  to  have  an  extensive  knowledge  on  the  law  and 
practice  of  Marine  Insurances,  in  the  last  edition  by  himself  in  1817,  does 
not  mention  any,  what  would  be  called  modern  cases  in  his  time,  and  for  a  very 
sufficient  reason,  because  there  are  none.  Fortunately,  however,  the  princi- 
ples of  the  law  relating  to  this  subject,  were  laid  down  by  that  great  Judge 
r  *~~q  -1  Lord  Chief  Justice  MansfiehU  *to  whose  talents  and  enlarged 
'-  -^  understanding  and  great  industry,  the  world  are  indebted  for  the 

thorough  explanations  and  illustrations  of  the  whole  of  this  subject,  conveyed 
in  language  the  most  lucid,  and  beautifully  impressive  and  convincing  to  the 
mind. 

I  shall  now  at  once  proceed  to  mention  the  important  cases  decided  on  this 
part  of  our  subject,  by  that  learned  Judge. 

First,  however,  I  must  refer  back  to  that  act  of  19  Geo.  2,  c.  37,  which 
underwent  a  good  deal  of  discussion  in  a  previous  part  of  this  Treatise,  on  the 
subject  of  'wagering  policies,'  and  policies  on  'interest  or  no  interest.'  Sec- 
tion the  fourth,  which  has  not  been  adverted  to  before,  enacts,  "that  it  shall 
not  be  lawful  to  make  re-assurance,  unless  the  assurer  should  be  insolvent, 
become  bankrupt,  or  die;  in  either  of  which  cases,  such  assurer,  his  executors, 
administrators,  or  assigns,  may  make  re-assurance  to  the  amount  before  by  him 
assured,  provided  it  be  expressed  in  the  policy  to  be  a  re-assurance." 

Re-assurance  "as  understood  by  the  law  of  England,  may  be  said  to  be  a 
contract  which  the  first  assurer  enters  into,  in  order  to  relieve  himself  from 
those  risks  which  he  has  incautiously  taken,  by  throwing  them  upon  other 
underwriters  who  are  called  re-assurers. "  («)  This  practice  seems  to  have 
been  copied  in  this  country  from  many  of  the  commercial  states  on  the  conti- 
nent. Many  foreign  writers  upon  assurance  have  written  in  favour  of  it: 
amongst  the  most  celebrated  may  be  mentioned  Le  Guidon,  (h)  Rocciis,  (c) 
Emerigon,  (d)  and  Pothier.  (e)  And  the  orchnances  of  Louis  the  Fourteenth, 
adopted  and  followed  the  idea  that  prevailed  in  France  when  the  Treatise  Le 
Guidon  was  written,  and  by  an  article  in  that  celebrated  code  of  laws,  [f)  it 
is  expressly  declared,  "that  it  should  be  lawful  to  the  assurers  to  make  reas- 
r  *77i  "1  *siii"^i^ce  with  other  men  of  those  effects  which  they  had  themselves 
L  J  previously  insured." 

But  the  practice  in  England,  when  it  was  unfettered  and  unrestrained  soon 
became  pernicious  to  a  large  commercial  nation,  and  instead  of  conferring  the 
great  benefits  which  were  expected  from  them,  as  written  by  those  foreign  wri- 
ters, were  at  length  with  their  companions  the  "wager  policies,"  which  were 
quite  as  mischevious,  included  in  the  act  of  19  Geo.  2,  c.  37,  which  most 
effectually  put  a  stop  to  th6  practice  of  "wager  policies,"  and  also  seems  by 
the  restrictions  in  the  fourth  clause  of  the  act,  very  nearly  as  well  to  have  put 
a  stop  to  the  practice  in  this  kingdom  of  re-assuring. 

This  being  premised,  and  the  enactment  being  borne  in  mind,  I  now  proceed 
to  mention  the  only  case  upon  this  subject. 

(a)  Park  Ins.  595.  {b)  C.  2,  art.  19. 

(c)   De  Assecur,  note  12.  (</)    1,  art.  247. 

(e)  Tit.  Assur.  No.  96.  (/)  Ord.  of  Louis  XIV.  tit.  Assur.  art.  20. 


OF    RE-ASSURANCE    AND    DOUBLE    ASSURANCE.  425 

This  clause  came  on  to  be  considered,  in  the  case  of  Andree  v.  Fletcher,  (a) 
in  the  form  of  a  special  case,  by  the  Court  of  King's  Bench,  stating  that  a  re- 
assurance was  made  by  the  defendant  on  a  French  vessel,  first  insured  by  a 
French  underwriter  at  Marseilles,  who  was  living,  and  at  the  time  of  subscrib- 
ing the  second  policy,  was  solvent. 

The  Court,   [Jishurst,  Butler  and  Grose,  Justices)  were  unanimously  of 
opinion,  that  this  policy  was  void :  and  that  every  re-assurance  in  this  country, 
either  by  British  subjects  or  foreigners,  on  British  or  foreign  ships,  is  void  by 
the  statute,  unless  the  first  assurer  be  insolvent,  becom.e  bankrupt,  or  die. 

A  double  insurance  is  where  an  assured  claims  to  receive  two  sums  instead 
of  one,  or  the  same  sum  twice  over,  by  reason  of  his  having  two  insurances 
upon  the  same  goods  on  the  same  ship.  A  double  insurance  is  not  void,  but  still 
the  assured  shall  recover  no  more  than  the  amount  of  his  loss.  It  being  setUed 
that  the  assured  can  recover  no  more  than  his  actual  loss,  and  it  being  allowed  him 
to  fix  on  which  underwriter  he  chooses,  it  is  a  principle  of  natural  justice  that 
*the  several  insurers  should  all  of  them  contribute  in  their  several  p  ^-,<^r\  -i 
proportions,  to  satisfy  that  loss,  against  which  they  have  all  insured.  •-  -^ 

These  principles  have  been  fully  settled  to  be  law  in  cases  which  I  am  about 
to  mention. 

In  the  year  1763,  in  the  case  of  Newhy  v.  Reed,  (b)  it  was  held  by  Lord 
Mansfield,  Chief  Justice,  and  agreed  to  be  the  course  of  practice,  that  upon  a 
double  insurance,  though  the  assured  is  not  entitled  to  two  satisfactions,  yet 
upon  the  first  action  he  may  recover  the  whole  sum  insured,  and  may  leave 
the  defendant  therein,  to  recover  a  rateable  satisfaction  from  the  other  insurers. 

Thus  also  it  was  determined  in  a  subsequent  case  at  Guildhall,  of  Rogers  v. 
Davis,  (c)  It  was  an  action  on  a  policy  of  insurance  on  a  ship  from  New- 
foundland to  Dominica,  and  from  thence  to  the  port  of  discharge  in  the  West 
Indies.  It  was  a  valued  policy  on  the  ship  and  freight ;  and  on  the  goods  as 
interest  should  appear.  The  ship  sailed  from  St.  Johi's  the  17ih  of  December, 
1775,  and  the  plaintiff  declared  as  for  a  total  loss.  The  defendant  underwrote 
for  200/.,  and  has  paid  into  Court  124/.  This  sum  was  paid  on  a  supposition 
that  the  underwriters  on  a  former  policy  should  bear  a  share  of  the  loss.  The 
plaintiff  had  originally  insured  at  Liverpool  on  a  voyage  from  Newfoundland 
to  Barbadoes  and  the  Leeward  Islands,  with  an  exception  of  American  cap- 
tures :  but  the  plaintiff  afterwards,  for  the  purpose  of  securing  himself  against 
captures,  and  having  altered  the  course  of  his  voyage,  made  the  present  insu- 
rance. The  plaintiff  now  insisted  he  was  entitled  to  receive  the  full  amount 
of  his  insurance  against  the  defendant,  and  not  to  any  part  from  the  Liverpool 
underwriters,  because  the  voyage  not  insured  was  different  from  that  insured  at 
IJverpool.  There  was,  however,  a  verdict  for  the  plaintiff  for  his  full  demand, 
with  liberty  for  the  defendant  to  bring  an  action  against  the  Liverpool  under- 
writers, if  he  thought  fit. 

*So  in  tlie  case  of  Davis  v.  Gildart,  (rf)  an  action  was  brought  r-  s'~7fl  ~| 
for  money  had  and  received  to  the  use  of  the  plaintiff,  who  was  the  ^  -• 

defendant  in  the  last  cause,  in  order  to  recover  a  contribution  for  the  loss  which 
the  plaintiff  had  been  obliged  to  pay.  It  was  agreed  by  both  parties  to  admit, 
that  on  the  London  policy,  (which  was  the  subject  of  the  former  action)  2200/. 
were  insured :  that  on  the  two  Liverpool  policies  1700/.  were  insured :  that 
the  merchant  was  interested  to  the  amount  of  500/.  on  the  ship,  300/.  on  the 
freight,  and  1400/.  on  the  cargo;  that  the  plaintiff  had  paid  200/.  loss,  and 

(a)  2  T.  R.  161.  (i)    1  Black.  416. 

(c)  Sit.  in  Mich.  Vac.  17,  Geo.  3,  before  Lord  Mansfield.     Park  Ins.  601. 

{d)  Sit.  Easter  Vac.  17  Geo.  3,  at  Guild.     Parkins.  601. 


426  OF    RE-ASSURANCE    AND    DOUBLE    ASSURANCE. 

47/.  for  the  costs.  The  question  was,  whether  the  defendant  was  liable  to 
contribute  anytliinof,  and  what?  The  whole  interest  was  2200/.,  and  the  whole 
insurance  was  3900/.  It  was  insisted  by  the  counsel  for  the  defendant,  that 
the  insurance  in  London  was  an  illegal  re-assurance;  and  therefore  the  plaintiff 
might  have  made  a  good  defence  in  an  action  brought  against  him :  and  if  so, 
he  could  not  now  recover  over  against  the  defendant. 

Lord  Mansfield. — "The  question  seems  to  be,  whether  the  insured  has  not 
two  securities  for  the  loss  that  has  happened.  If  so,  can  there  be  a  doubt  that 
he  may  brinsr  his  action  against  either.?  It  is  like  the  case  of  two  securities, 
where,"  if  all  the  money  be  recovered  against  one  of  them,  he  may  recover  a 
portion  from  the  other. "  Then  this  would  bring  it  to  the  question,  whether  the 
second  insurance  is  void  as  a  re-assurance.''  But  a  re-assurance  is  a  contract 
made  by  the  insurer  to  secure  himself;  and  this  is  only  a  double  insurance." 
There  was  another  ground  taken  in  the  cause,  which  is  not  material  to  be  men- 
tioned here  :  but  upon  this  direction  the  plaintiff  had  a  verdict. 

2.  There  is  an  important  case  upon  this  subject,  and  a  very  elaborate  argu- 
ment of  Lord  MansJiehU  in  delivering  the  judgment  of  the  whole  Court  of 
Kino-'s  Bench,  in  wliich  most  of  the  questions  relative  to  double  insurances  are 
-,  clearly  and  decisively  settled,  Godlin  and  others  v.  London  Asso- 
[  '"'"'  J  ciation  ^Company,  {a)  In  this  cause  the  question  was,  whether 
the  plaintiff  ought  to  recover  his  whole  loss,  or  only  a  half.?  it  being  objected 
that  diere  was  a  double  insurance.  A  verdict  was  found  for  the  whole,  subject 
to  the  opinion  of  the  Court  upon  Lord  MansfieUrs  report. 

Lord  Mansfield,  in  delivering  the  opinion  of  the  Court  began  by  stating  the 
facts,  as  they  appeared  to  him  at  the  trial. 

"Mr.  Meybohm,  of  St.  Petersburgh,  had  dealings  with  Mr.  Amyand  and 
Company,  of  London,  who  often  sent  ships  from  London  to  Mr.  Meybohm 
at  St.  P'etersburgh.  Meybohm,  as  appeared  by  the  evidence,  was  indebted, 
on  the  balance  of  their  accounts,  to  Amyand  and  Company.  Amyand  and 
Company  sent  a  ship,  called  The  Galloway,  Steplien  Barker,  master,  to  Mr. 
Meybohm  at  St.  Petersburgh,  to  fetch  certain  goods.  Meybohm  sent  the 
goods,  and  promised  to  send\he  bill  of  ladinij  by  the  next  post,  but  never  did. 
Afterwards,  in  August,  1756,  Amyand  and  Company  got  a  policy  of  insurance 
from  private  underwriters  for  1100/.,  on  the  ship,  tackle,  and  goods,  at  and  from 
London  to  St.  Petersburgh,  and  at  and  from  thence  back  again  to  London; 
which  policy  was  signed  by  several  private  underwriters,  quite  different  persons 
from  the  present  defendants;  and  of  this  sum  of  1100/.  thus  underwritten, 
500/.  was  declared  to  be  on  }}  parts  of  the  ship,  and  the  remaining  600/.  to  be 
on  goods.  Between  the  26th  of  August,  and  the  28th  of  September,  1756, 
(boFh  included,)  Mr.  Amyand  insured  800/.  more,  with  other  private  insurers  : 
and  this  latter  insurance  was  upon  goods  only,  and  was  only  at  and  from  St. 
Petersburgh  to  London.  On  the  28di,  29th  and  30th  of  October,  1756,  Mr. 
Amyand  insured  900/.  more  with  odier  private  insurers,  which  last  insurance 
was  on  goods  only,  at  and  from  the  Sound  to  London.  So  that  the  whole 
sum  insured  by  Amyand  and  Comi)any  was  2800/.,  of  which  the  sum  of  2300/. 
was  on  goods,'  and  the  remaining  500/.  was  on  the  ship.  Several  letters  being 
given  *in  evidence,  it  appeared  that  Meybohm  wrote  from  St. 
L  *'^'^^  J  Petersburgh  on  the  7th  of  September  1756,  (the  date  of  his  first 
letter  on  this  subject)  "to  Amyand  and  Company ;  and  mentioned  what  goods 
he  should  send  to  them,  referring  to  the  invoice  for  particulars  ;  and  directed 
them  to  get  insurance  thereon,  and  to  place  the  goods  and  the  insurance  to  a 
particular  account  which  he  named  in  his  letter ;  in  which  he  also  specified 


(a)   1  Burr.  489;  1  Black.  Rep.  103. 


OF    RE-ASSURANCE    AND    DOUBLE    ASSURANCE.  427 

some  iron,  which  was  for  Mr.  Amyand's  own  account.  This  letter  Mr.  Amyand 
afterwards  received  (prol)ably  about  the  27tli  of  October)  an(i  in  consequence 
of  it  made  the  insurance  accordingly,  upon  the  28th,  2'.)lh,  and  30th  of  the 
same  October^  as  l)efore-mentioned.  Meybohm  having  shipped  the  {roods, 
endorsed  the  bills  of  ladinjr  to  one  Mr.  John  'J'aniesz,  in  Moarjrw  (tlie  plainlilf, 
in  effect,  in  the  present  action)  who,  on  ttie  7th  of  October,  1750,  wrote  to  his 
correspondent  Mr.  Uhthoff,  here  in  London,  to  insure  these  goods.  In  this 
letter  he  desires  Mr.  Uhthoff  to  insure  the  whole,  that  he  (Tamesz)  might  be 
safe  in  all  events :  for  he  suspected  that  these  goods  were  intended  to  be  con- 
signed by  Meybohm  to  somel)ody  else,  and  perhaps  might  be  insured  by  some 
other  persons.  And  he  says  they  were  transferred  to  him  in  consideration  of 
his  being  in  advance  to  Meybohm  more  than  their  amount.  This  letter  from 
Mr.  Tamesz,  with  these  directions  to  insure,  was  received  by  Mr.  Uhthoff  on 
the  15th  of  November,  1756.  Mr.  Uhthoff  accordingly  applied  to  the  defend- 
ants, the  London  .Assurance  Company,  and  disclosed  to  them,  at  the  same 
time,  all  these  particulars  :  and  they,  upon  the  16th  of  November,  1756,  after 
being  thus  apprised  that  there  might  be  another  insurance,  made  the  insurance 
now  in  question  for  2316/.  on  the  goods  at  and  from  the  Sound  to  London. 
The  goods  were  lost  in  the  voyage.  Mr.  Uhthoff's  insurance  was  made  by 
the  plaintifl's,  Godin,  Guyhon  and  Company,  who  are  insurance  brokers  5  and 
they  declare  that  this  insurance  was  made  by  order  of  Henry  Uhthoff,  Esq. 
This  declaration  is  endorsed  upon  the  policy,  and  is  dated  the  18th  of  TVo^je/n- 
ber,  1756.  There  is  no  doubt  as  to  the  value  of  the  goods,  or  as  to  the  loss 
of  them.  *It  is  admitted  by  the  defendants,  that  the  plaintiffs  ought  p  ^,_,«jj  -, 
to  recover  half  the  loss  from  them,  but  they  say  they  ought  to  pay  L  J 

only  half,  not  the  whole  of  the  loss.  So  that  the  only  question  is,  whether  the 
plaintiffs  are  entided,  upon  the  circumstances  of  this  case,  and  upon  the  facts  I 
have  been  stating,  to  recover  the  whole  loss  from  the  present  defendants ;  or 
only  the  half  of  his  loss  from  them,  and  the  remainder  from  the  underwriters 
of  Mr.  Amyand's  policy.  The  verdict  is  found  for  the  plaintiff  for  the  whole  : 
but  it  is  agreed  to  be  subject  to  the  opinion  of  this  Court,  upon  the  question  I 
have  just  mentioned. 

"First,  to  consider  it  as  between  the  insurer  and  insured.  As  between 
them,  and  upon  the  foot  of  commutative  justice  merely,  there  is  no  colour  why 
the  insurers  should  not  pay  the  insured  the  whole  ;  for  they  have  received  a 
premium  for  the  whole  risk.  Before  the  introduction  of  wagering  policies,  it 
was  upon  principles  of  convenience  very  wisely  established,  that  a  man  should 
not  recover  more  than  he  had  lost.  Insurance  was  considered  as  an  indemnity 
only,  in  case  of  a  loss ;  and  therefore  the  insurance  ought  not  to  exceed  the 
loss.  This  rule  was  calculated  to  prevent  fraud ;  lest  the  temptation  of  gain 
should  occasion  unfair  and  wilful  losses.  If  the  insured  is  to  receive  but  one 
satisfaction,  natural  justice  says  that  the  several  insurers  shall  all  of  them  con- 
tribute pro  rata,  to  satisfy  that  loss  against  which  they  have  all  insured.  No 
particular  cases  are  to  be  found  on  this  head;  or,  at  least,  none  have  been 
cited  by  the  counsel  on  either  side.  Where  a  man  makes  a  double  insurance 
of  the  same  thing,  in  such  a  manner  that  he  can  clearly  recover  against  several 
insurers  in  distinct  policies  a  double  satisfaction,  the  law  certainly  says  that  he 
ought  not  to  recover  doubly  for  the  same  loss,  but  be  content  witli  one  single 
satisfaction  for  it.  And  if  the  same  man  really  and  for  his  own  proper  account 
insures  the  same  goods  doubly,  though  both  insurances  be  not  made  in  his  own 
name,  but  one  or  both  of  them  in  the  name  of  another  person,  yet  that  is  just 
the  same  thing ;  for  the  same  person  is  to  have  the  benefit  of  both  policies. 
And  if  the  *whole  should  be  recovered  from  one,  he  ought  to  p  ^^g^  -, 
stand  in  the  place  of  the  insured,  to  receive  contribution  from  the  L  -J 

other,  who  was  equally  liable  to  pay  the  whole.     But  in  this  case  if  Tamesz 


428  OF    RE -ASSURANCE    AND    DOUBLE    ASSURANCE. 

was  not  to  have  the  benefit  of  both  poHcies  in  all  events,  then  it  can  never  be 
considered  as  a  double  policy." 

"It  has  been  said,  that  the  endorsement  of  the  bills  of  lading  transferred 
Meybohm's  interest  in  all  policies,  by  which  the  cargo  assigned  was  insured  | 
and  therefore  Taniesz  has  a  right  to  Mr.  Amyand's  policy ;  and  that  Tamosz, 
being  the  assignee  of  Meybohm,  is  the  cestin  que  trust  of  it,  and  may  recover 
the  money  insured  5  and  even  that  he  may  bring  trover,  or  detinue,  for  the 
very  policy  itself:  and  it  is  urged  from  hence,  that  he  either  will  or  may  have 
a  double  satisfaction  for  the  same  loss." 

"But  allowing  that  by  the  endorsement  of  the  bills  of  lading  and  assigning 
the  cargo  to  Tamesz,  he  stands  in  the  place  of  Meybohm  in  respect  of  his 
insurances;  yet  Mr.  Amyand  has  an  interest  of  his  own,  and  had  actually 
insured  the  ship  and  goods  to  the  amount  of  1,900/.  (upon  both  together)  prior 
to  any  directions  or  intimation  received  from  Mr.  Meybohm,  to  insure  for  him. 
Various  people  may  insure  various  interests  on  the  same  bottom  :  (as  one  per- 
son for  goods,  another  for  bottomry,  &c.)  And  here  Mr.  Amyand  had  an 
interest  of  his  own,  distinct  from  that  of  Mr.  Meybohm :  he  had  a  lien  upon 
these  very  goods  as  a  factor  to  whom  a  balance  was  due.  And  he  had  the  sole 
interest  in  the  ship :  which  was  a  part  of  the  things  insured  by  him.  It  is  far 
from  appearing,  that  even  his  last  insurance  (in  October)  was  made  on  the 
account  of  Meybohm,  or  as  agent  for  him.  So  far  from  it,  Mr.  Amyand 
insists  upon  it  for  his  own  benefit,  (as  he  expressly  declared  at  the  trial)  and 
absolutely  refuses  to  give  it  up,  or  to  suffer  his  name  to  be  used  by  the  plaintiff; 
though  he  was  a  witness  for  the  defendants,  and  was  produced  by  them,  and 
inclined  to  serve  them.  So  that  the  foundation  of  this  argument,  urged  by  the 
defendants'  counsel,  fails  them :  and  there  is,  in  reality,  nothing  to  support  it. 
r  *7Qi  -1  But  even  supposing  that  Mr.  Amyand  had  made  his  *insurance, 
L  -'  not  upon  his  own  account,  but  as  agent  or  factor  for  Mr.  Meybohm, 

and  upon  the  account  of  Meybohm ;  yet  even  then  Tamesz  can  never  come 
against  Amyand's  underwriters,  or  come  at  Amyand's  policy,  to  his  own  use. 
For  Amyand,  the  factor  of  Meybohm  has  possession  of  the  policy,  and  appears 
to  have  been  a  creditor  of  Meybohm  upon  die  balance  of  accounts  between 
them,  at  the  time  when  he  made  the  insurance :  and  I  take  it  now  to  be  a  set- 
tled point,  "that  a  factor  to  whom  a  balance  is  due,  has  a  lien  upon  all  goods 
of  his  principal,  so  long  as  they  remain  in  his  possession."  Kruger  mid 
others  v.  Wilcox  and  others^  was  a  case  in  Chancery  upon  this  point,  (a)  It 
came  on  first  before  Sir  John  Strange,  then  Master  of  the  Rolls,  who  decreed 
an  account,  and  directed  allowances  to  be  made  for  what  the  factor  had  ex- 
pended on  account  of  the  ship  or  cargo,  and  reserved  all  further  directions  till 
after  the  Master's  report.  It  came  on  again,  afterwards,  for  further  directions, 
after  the  Master's  report,  before  the  Lord  Chancellor,  who  was  attended  by- 
four  eminent  merchants,  whom  he  interrogated  publicly.  After  which  he  took 
time  to  consider  of  it;  and  on  the  first  of  Fehruary,  1755,  decreed,  "that  a 
factor  has  a  lien  on  goods  consigned  to  him;  not  only  for  incident  charges  but 
as  an  item  of  mutual  account  for  the  general  balance  due  to  him  so  lono-  as  he 
retains  the  possession.  But  if  he  part  with  the  possession  of  the  goods,  he 
parts  with  his  lien,  because  it  cannot  then  be  retained  as  an  item  for  the  general 
account."  There  was  another  case,  in  the  same  Court,  of  Gardiner  v.  Cole- 
mati,  a  few  months  after;  in  which  the  former  case,  determined,  as  I  have 
mentioned,  was  considered  as  a  point  settled ;  and  this  latter  case  of  Gardiner  v. 
Coleman  was  decreed  agreeably  to  it.  So  that  Mr.  Amyand,  even  considered 
as  factor  or  agent  to  Meybohm,  and  as  making  the  insurance  upon  Meybohm's 


(a)  Ambler's  Rep.  252. 


OF    THE    PROCEEDINGS    IN   THE    ACTION.  429 

account,  is  yet  entitled  to  retain  the  policy;  Meybohm  being  indebted  to  him 
upon  the  balance  of  the  account  between  them ;  and  he  has  a  lien  ^ 
upon  *the  policy  whilst  it  continues  in  his  possession.  'I'herefore,  L  ""^^'^  J 
even  in  this  view  of  the  case,  Mr.  Tamesz  must  first  have  paid  to  Amvand  the 
balance  of  his  (Arayand's)  account,  before  he  could  have  gotten  that  policy  out 
of  Amyand's  hands ;  and  consequently  Mr.  Tamesz  was  very  far  from  beino- 
entiUed  to  the  benefit  of  it  as  a  cestui  que  trust,  absolutely  and  entirely." 

"But  if  the  question,  'Whether  Tamesz  could  take  the  benefit  of  Mr. 
Amyand's  policy,'  were  doubtful 5  yet  here,  Tamesz  insured  the  goods  with 
the  defendants,  expressly  under  the  «leclaration  of  his  suspicion,  that  there 
might  have  been  a  former  consignation,  and  some  former  insurance  made  upon 
the  goods  by  some  other  person :  but  he  desired  to  insure  the  whole  for  his 
own  security;  and  to  this  the  defendants  agreed,  and  took  the  whole  premium. 
Amyand  insisted  upon  his  right  to  the  whole  benefit  of  his  own  policy,  when 
he  was  examined  as  a  witness  :  and  is  now  litigating  it  in  Chancery.  It  would 
neither  be  just  nor  reasonable,  that  Tamesz  should  only  recover  half  of  his  loss 
from  the  defendants,  and  be  turned  round  for  the  other  half  to  the  uncertain 
event  of  a  long  and  expensive  litigation.  I  do  not  believe  there  ever  will  or 
can  be  a  recovery  by  Tamesz,  or  those  who  shall  stand  in  his  place,  atrainst 
Amyand's  underwriters.  However,  if  those  underwriters  are  liable  to  contribute 
at  all,  the  contribution  ought  to  be  among  the  several  insurers  themselves :  but 
Tamesz,  the  insured,  has  a  right  to  recover  his  whole  loss  from  the  defendants, 
upon  the  policy  now  in  question,  by  which  they  are  bound  to  pay  the  whole. 
For  though  here  be  two  insurances,  yet  it  is  not  a  double  insurance ;  to  call  it 
so  is  only  confounding  terms.  If  Tamesz  could  recover  against  both  sets  of 
insurers,  yet  he  certainly  could  not  recover  against  the  underwriters  of  Amyand's 
policy,  without  some  expense :  nor  without  also  first  paying  and  re-imbursing 
to  Mr.  Amyand  the  premium  he  paid,  and  also  his  charges.  This  is  by  no 
means  within  the  idea  of  a  double  insurance.  Two  persons  may  insure  two  dif- 
ferent interests  ;  each  to  the  whole  value  ;  as  the  master  for  wages ;  p  ^^ 
*the  owner  for  freight,  &c.      But  a  double  insurance  is  where  the  L  J 

same  man  is  to  receive  two  sums  instead  of  one,  or  the  same  sum  twice  over  for 
the  same  loss,  by  reason  of  his  having  made  two  insurances  upon  the  same 
goods,  or  the  same  ship.  Mr.  Tamesz  is  entitled  to  receive  the  whole  from 
the  defendants,  upon  their  policy;  whatever  shall  become  of  Mr.  Amyand's 
policy :  and  they  will  have  a  right,  in  case  he  can  claim  anything  under  Mr. 
Amyand's  policy,  to  stand  in  his  place,  for  a  contribution  to  be  paid  by  the 
other  underwriters  to  them.  But  still  they  are  obliged  to  pay  the  whole  to 
him.  Therefore,  upon  these  grounds  and  principles  in  every  light  in  which 
the  case  can  be  put,  we  are  all  of  us  clearly  of  opinion,  that  it  is  right,  as  it 
now  stands  for  ;  and  that  the  postea  must  be  delivered  to  the  plaintiff. " 


SECTION  VI. 


OF    THE    PROCEEDINGS    IN    THE    ACTION. 


Having  in  the  seventeenth  secdon  of  the  first  Part  of  this  Treatise  shewn 
how  policies  are  in  practice  actually  made,  and  having  likewise  shewn  how 
the  accounts  are  settled  between  the  assured,  the  broker,  and  the  underwriter, 
and  what  has  been  setded  by  the  Courts  as  to  the  validity  in  law  of  passing 
such  accounts  between  the  three  parties ;  in  the  present  section  it  is  my  object 


430  OF    THE    PROCEEDINGS    IN    THE    ACTION. 

to  point  out,  in  tlio  case  of  eit))er  party  dispiitiujT  the  payment  demanded  by 
the  other  or  disputing  as  to  the  character  of  the  h)ss,  which  of  course  makes 
all  the  diirerence  in  the  payment,  what  steps  and  proceedings  will  be  necessary 
for  either  to  take,  in  the  one  case  to  recover  by  law  what  the  one  party  claims, 
and  in  tlie  other  in  order  to  resist  it;  or  in  any  case,  where  either  of  the  parties 
thinks  t!iat  lie  has  a  legal  claim  against  the  other. 

The  relief  which,  by  the  law  in  this  country  is  settled,  is  generally  by  an 
action  at  law.  Though  there  are  cases  where  (;ither  party  may,  and  sometimes 
r  *78l  "1  *'*^^^  o^  '■*^*  ^  Court  of  *Equity  for  relief,  as  for  instance  for  an 
L  J  injunction  to  stop  an  action  at,  law.  («)     There  are  two  well  known 

instances  in  which  a  Court  of  Equity  will  or  will  not  interfere;  which  are 
these :  at  the  Common  Law  it  is  a  maxim  that  a  policy  of  assurance  cannot  be 
altered  after  it  has  been  signed,  (at  least  not  without  the  consent  of  the  parlies) 
and  a  Court  of  Equity  will  not  alter  a  policy  in  the  absence  of  strong  proof  of 
its  being  contrary  to  the  intent  and  agreement  of  the  parties.  This  was  held 
in  the  case  of  Ilenkle  v.  Royal  Exchana;e  ^^ssurance  Company,  (b)  But 
where  a  policy  has  been  drawn  up  by  mistake,  in  terms  which  are  not  con- 
formable to  the  real  intention  of  the  parties,  the  instrument  may  be  rectified  in 
a  Court  of  Etpiity  l)y  the  slip  or  label,  so  decided  in  the  case  of  Moiteux  v. 
The  Governor  and  Company  of  London  Assurance,  (c)  There  is  another 
ground  for  an  application  to  a  Court  of  Equity,  where  there  is  a  suspicion  of 
fraud  on  the  part  of  the  assured:  in  such  cases,  the  Court  of  Equity  will  com- 
pel the  party  to  make  a  full  disclosure  upon  oath  of  all  the  circumstances  that 
are  within  his  knowledge.  ((/)  But  except  in  these  instances,  all  issues  upon 
policies  of  insurance  must  be  tried  in  the  Courts  of  Common  Law. 

Even  if  the  parties,  by  a  clause  in  the  policy,  agree  that  in  case  of  a  dispute, 
it  shall  be  referred  to  arbitration,  that  will  not  be  a  sufficient  bar  to  an  action  at 
law,  provided  no  reference  has  been  in  fact  made,  nor  is  depending. 

Thus  in  Kill  v.  HoUister  (e)  in  an  action  upon  a  policy  of  insurance  it  ap- 
peared, that  a  clause  was  inserted,  that  in  case  of  any  loss  or  dispute  about  the 
policy,  it  should  be  referred  to  arbitration;  and  the  plaintifT  averred  in  his 
declaration,  that  there  had  been  no  reference.  Upon  the  trial  at  Guildhall,  the 
point  was  reserved  for  the  consideration  of  the  Court,  whether  this  action  would 
P  ^--QK  -1  lis  before  a  reference  had  been  *made;  and  it  was  held  by  the 
L       '  J  whole  Court,  that  if  there  had  been  a  reference  depending,  or  made 

and  determined,  it  might  have  been  a  bar:  but  the  agreement  of  the  parties 
cannot  oust  this  Court;  and  as  no  reference  has  been,  nor  any  is  depending, 
the  action  is  well  brought,  and  the  plaintiff  must  have  judgment. 

IL  Having  thus  seen  in  what  Courts  the  party  injured  in  the  contract  of 
insurance  is  to  seek  for  redress,  let  us  now  consider,  by  what  form  of  action 
that  redress  is  to  be  obtained. 

L  The  act  of  Parliament,  by  which  the  two  insurance  Companies  were 
erected,  (a)  ordered,  tliat  they  should  have  a  common  seal,  by  affixing  which, 
all  corporate  bodies  ratify  and  confirm  their  contracts.  (6)  Hence  a  policy  of 
insurance  made  by  the  Royal  Exchange  Assurance  Company,  or  the  London 
Assurance  Company,  is  a  contract  under  seal;  and  if  the  contract  is  broken, 
the  proceedings  against  these  Companies  must  be  by  action  of  debt  or  cove- 


(o)   See  Lewen  v.  Swasso,  ante,  p.  342.  (6)    1  Ves.  317. 

(c)   1  Atkvns,  545.  {d)  2  Atkyns,  359. 

(e)  1  Wik  129.  And  in  Thompson  v.  Charnock,  8  T.  R.  139,  it  was  held  that  a 
covenant  in  a  deed  to  refer  all  matters  is  not  sufficient  to  oust  the  Courts  of  Law  and  Equity 
of  their  jurisdiction. 

(a)  Ante,  p.  530.  (i)  6  Geo.  1,  c.  18. 


OF    THE    PROCEEDINGS    IN'    THE    ACTION.  431 

rant,  (c)  From  this  circumstance  a  ;^eat  inconvenience  arose ;  for  under  the 
plea  of  the  general  issue  to  an  action  of  debt  or  covenant,  the  true  merits  of  the 
case  could  seldom  come  in  question  :  but  in  order  to  bring  them  forward,  it 
became  necessary  to  plead  specially.  This  was  attended  with  such  a  heavy 
expense,  such  great  delays,  and  frequent  applications  to  Courts  of  Equity  for 
relief,  that  the  Legislature  at  last  interposed,  and  enacted,  "that  in  all  actions 
of  debt  to  be  sued  or  commenced  against  either  of  the  said  corporations,  upon 
an)-  policy  of  insurance  under  the  common  seal  of  such  corporations,  for  the 
assuring  of  any  ship  or  ships,  goods  or  merchandises,  at  sea  or  going  to  sea,  it 
should  and  might  be  lawful  to  and  for  the  said  corporations,  in  such  action  or 
suit,  to  plead  generally,  that  they  owed  nothing  to  the  plaintiff  or  plaintilTs  in 
such  *suit  or  action ;  and  that  in  all  actions  of  covenant,  Avhich  p  *'~Qf>  t 
should  be  sued  or  commenced  against  either  of  the  said  corpora-  L  J 

tions  upon  any  such  policy  of  assurance  under  the  common  seal  of  such  cor- 
poration for  the  assuring  of  any  ship  or  ships,  goods  or  merchandises,  at  sea 
or  going  to  sea,  it  should  and  might  be  lawful  for  the  said  respective  corpo- 
rations, in  such  action  or  suit,  to  plead  generally,  that  they  had  not  broke  the 
covenants  in  such  policy  contained,  or  any  of  them ;  and  if  thereupon  issue 
should  be  joined,  it  should  and  might  be  lawful  for  the  jury,  if  they  should 
see  cause,  upon  the  trial  of  such  issue,  to  find  a  verdict  for  the  plaintiff  or 
plaintiffs  in  such  suit  or  action,  and  to  give  so  much,  or  such  part  only  of  the 
sum  demanded,  if  it  be  an  action  of  debt,  or  so  much  in  damages,  if  it  be  an 
action  of  covenant,  as  it  should  appear  to  them,  upon  the  evidence  given  upon 
such  trial,  such  plaintiff  or  plaintiffs  ought  in  justice  to  have."  (a) 

2.  Wherever  the  contract  of  insurance  is  entered  into  with  a  private  under- 
writer, it  is  done  by  the  insurer  merely  subscribing  his  name  to  the  instrument, 
which  is  no  more  than  what  is  called  a  simple  contract ;  the  remedy  for  a  breach 
of  which  is  by  an  action  of  assumpsit,  or  an  action  upon  the  case  founded 
upon  the  promise  and  undertaking  of  the  insurer. 

3.  When  a  number  of  actions  are  brought  upon  the  same  policy,  it  is  a  con- 
stant practice  (b)  to  consolidate  them  by  a  rule  of  Court,  or  by  a  Judge's  order, 
which  restrains  the  plaintiff  from  proceeding  to  trial  in  more  actions  than  one, 
and  hinds  the  defendants,  in  all  the  others,  to  abide  the  fate  of  that  one :  but 
this  is  done  on  the  condition  that  the  defendant  shall  not  file  any  bill  in  equity, 
or  bring  any  writ  of  error  for  delay.  The  Court  will  likewise,  upon  a  proper 
ground  being  made  by  the  plaintilT,  impose  any  other  terms  on  the  defendants 
which  under  all  circumstances  appear  reasonable  :  as  that  they  shall  produce  at 
the  trial  all  books,  *papers,  &c.,  in  their  custody,  material  to  the  ^  ^.^q^.  -| 
point  in  issue  :  that  the  defendant,  in  the  action  to  be  tried,  shall  ■-  J 
admit  his  subscription  to  the  policy,  the  interest  of  the  assured,  the  loss,  or 
any  other  fact  upon  which  the  question  intended  to  be  tried  does  not  turn,  or 
which  is  not  meant  to  be  seriously  disputed.  But  the  Court  will  not  impose 
any  terms  on  the  defendant,  out  of  the  ordinary  course,  M'ithout  his  consent, 
which,  however,  a  defendant  who  only  means  to  litigate  fairly  will  not  refuse, 
when  it  is  only  to  save  the  trouble  and  expense  of  proving  facts  which  are  not 
disputed.  And,  on  the  other  hand,  the  Court  will  impose  any  reasonable 
counter  terms  on  the  plaintiff  which  the  defendant  may  have  to  propose,  (c) 

(c)  By  the  39  Geo.  3,  c.  83,  the  Globe  Insurance  Company  was  incorporated,  and  by 
the  9th  sect,  the  same  pleas  and  the  same  power  to  the  jury  to  assess  the  damages,  are  given 
as  in  the  case  of  the  Royal  Exchange  and  London  Assurance  Companies,  and  in  other  cor- 
porate Insurance  Companies. 

(a)  11  Geo.  1,  c.  30,  s.  43.  And  by  Reg.  Gen.,  Trin.  Term,  1  Vict,  the  words  "by 
statute"  must  now  be  inserted  in  the  margin  of  the  plea. 

(6)  See  ante,  p.  681,  in  the  oase  of  Thelluson  v.  Staples. 

(c)  See  March,  vol.  2,  ch.  16,  s.  4. 
Vol.  VII.— D  2 


432  OF    THE    PROCEEDINGS    IN    THE    ACTION. 

It  was  formerly  thought  that  a  consolidation  rule  bound  the  plaintifT  as  well 
as  the  defendant,  and  that  the  Court  or  Judj^c  could  not,  thougii  fresh  evidence 
had  been  discovered,  permit  the  plaintiff  to  try  tlie  other  actions.  IJut  the  con- 
trary has  now  been  decided  in  llie  case  of  Doijle  v.  JJovglas,  [b]  in  which  a 
consolidation  rule  had  been  entered  into,  whereby  ten  of  the  defendants  agreed 
to  be  bound  by  the  verdict  in  the  first  aclion,  Doijlr.  v.  Dallas,  to  make  certain 
admissions,  and  bring  no  writ  of  error,  and  file  no  bill  in  equity  for  delay ;  and 
the  proceedings  were  to  be  delayed  in  the  last  ten  actions  till  after  the  trial  of 
the  first.  Thl'  defendant  had  the  verdict,  and  judgment  was  signed,  and  execu- 
tion issued  for  the  costs.  No  levy  was  made,  as  the  jdaintilf's  goods  were 
moved  out  of  the  way.  The  case  of  Dorjle  v.  IJoui^laa  being  set  down  for 
trial,  a  rule  was  obtained  to  show  cause  why  the  proceedings  in  Doyle  y. 
Dow^las  shoidd  not  be;  stayed  till  the  plaintifT  should  have  paid  the  costs  in 
Boyfe  v.  Dallas^  and  why  the  defendant  should  not  be  allowed  to  issue  execu- 
tion. 

Per  Curiam. — "To  grant  this  rule,  would  be  stretching  the  authority  of  the 

-,  Court  farther  than  we  are  entiUed  to  *carry  it.      By  the  practice 

[      788     J  (.Qj^tcnJ^j^i  fo,.^   the  plaintilT,   as  well  as  the  defendant,  would  be 

bound  by  the  consolidation  rule.     The  defendant  may  issue  execution,  but  the 

cost  of  the  rule  must  be  discharged."  (a) 

And  in  the  case  of  Doyle  v.  .finder son:  Doyle  v.  Stewart,  [b)  where  a 
plaintiff  brings  several  actions  upon  the  same  policy  of  insurance  against  several 
underwriters,  the  Court  will  not,  witliout  the  consent  of  die  plaintifT,  make 
a  consolidation  rule  upon  the  terms  of  both  plaintifT  and  defendant,  being  bound 
in  all  the  actions  by  the  event  of  one.  The  ('ourt  saying,  "that  they  could 
not  force  a  party  to  accept  a  benefit,  for  which  he  does  not  ask,  and  impose 
conditions  on  him  for  so  doing." 

In  a  later  case  of  HoUingsworth  v.  Broderick,  <^c.,(c)  however,  then  the 
preceding,  where  two  actions  had  been  brought  by  the  same  plainliflf  on  the 
same  policy  of  insurance  against  different  defendants,  the  Court  ordered  them 
to  be  consolidated,  after  a  declaration  had  been  delivered  in  one,  and  an  appear- 
ance entered  in  the  other,  at  the  instance  of  the  defendant,  in  the  latter  action, 
though  die  plaintiff*  objected. 

But  in  the  case  of  Ohrly  v.  Dunbar,  {d)  where  sixty -five  actions  were  brought 
by  one  party  on  policies  of  insurance  against  individual  underwriters  and  incor- 
porated companies,  for  sums  amounting  in  the  whole  to  27,000/.,  the  defend- 
ants obtained  a  consolidation  rule,  which  bound  the  plaintifT  as  well  as  the 
defendants.  One  cause  was  tried,  the  plaintifT  had  a  verdict,  and  a  rule  was 
r  ;  Q  "1  granted  for  a  new  trial  on  *affidavit  of  surprise  and  merits.  Two 
L  *'^'^^  -I  of  the  defendants  had  died,  and  the  plaintifT  alleged  that  whilst  the 
case  stood  over  he  lost  the  interest  of  the  27,000/.  The  Court,  on  these 
^rounds,  refused  to  direct  the  money  to  be  paid  into  Court  or  invested,  to  wait 
the  event  of  the  cause,  in  which  the  rule  nisi  had  been  granted. 

4.  As  the  action  on  a  policy  of  assurance  is  of  a  transitory  nature,  the 
venue,  if  laid  in  a  county  different  from  that  in  which  the  cause  of  action 


(6)  4  B.  &  Ad.  544.  The  defendant  had  been  ruled  by  a  Judge's  order  not  to  issue 
execution. 

(a)  In  Long  v.  Douglas,  Mich.  T.  1831,  where  the  plaintiff  failing  in  the  first  cause, 
gave  notice  of  trial  in  another,  the  costs  of  the  first  remaining  unpaid.  A  rule  was  obtained 
for  staying  the  proceedings.  The  Court  discharged  the  rule.  Lord  Tenterden,  observing, 
however,  that  where  the  plaintiff  proceeded  in  a  second  consolidated  action  without  apply- 
ing to  the  Court,  he  was  not  entitled  to  have  the  benefit  of  any  terms  imposed  on  the  defend- 
ants by  the  rule.  {(j)    1  A.  &  E.  6.35. 

(c)  4  A.  &  E.  646,  and  see  the  rule  which  was  drawn  up  by  consent  in  that  case. 

(d)  5  A.  &  E.  824. 


OF    THE    PROCEEDINGS    IN    THE    ACTION.  433 

accrued,  may  be  changed  by  the  defendant  in  the  usual  manner,  (a)  unless  the 
policy  be  under  seal ;  (6)  in  which  case  the  Court  will  not  change  the  venue 
without  some  special  reason  being  shown  to  induce  them  to  depart  from  the 
general  rule.  And  the  venue  cannot  be  changed  when  the  cause  of  action 
arises  out  of  the  realm,  (c) 

5.  The  next  consideration  is,  the  declaration  in  the  action ;  and  as,  of  course, 
the  form  of  the  policy  upon  which  the  action  is  brought  must  be  inserted  in  the 
declaration,  I  must  state,  therefore,  what  is  required  of  the  policy,  before  it 
can  be  read  in  the  declaration  as  the  ground  of  the  action. 

Istly, — It  is  necessary  that  the  day,  month,  and  year,  on  which  the  policy 
is  executed  should  appear  upon  die  instrument  itself. 

2ndly, — That  the  policy  has  a  stamp  required  by  law.  (fZ) 

It  is  my  intention  now  to  present,  for  the  attention  as  well  as  information  of 
the  reader,  some  forms  of  declarations  and  pleas  on  marine  policies,  and  I  shall 
make  such  references  in  the  body  of  the  declaration  as  I  think  are  necessary  to 
the  pages  of  the  first  part  of  this  Treatise,  where  the  very  words  of  the  policy 
are  fully  treated  of.  I  may,  however,  first  observe,  that,  in  the  Treatise  itself, 
it  will  be  seen  that  in  many  instances  the  declaration  and  pleas  are  frequently 
*stated  and  referred  to ;  and,  in  most  cases,  I  have  stated  how  a  r-  ;^~qrj  -i 
particular  loss  is  to  be  averred  in  the  declaration.  L  J 

By  Reg.  5,  H.  T.,  4  Wm.  4,  it  is  ordered  that  "two  counts  on  the  same 
policy  of  assurance  are  not  to  be  allowed.  But  a  count  upon  a  policy  of  insu- 
rance, and  a  count  for  money  had  and  received  to  recover  back  the  premium, 
implied  by  law,  are  to  be  allowed.  The  account  stated  may  be  joined,  and 
there  may  be  several  breaches  to  the  same  contract."  And  by  3  &  4  Wra.  4, 
c.  42,  s.  29,  interest  is  recoverable. 

The  first  form  of  a  declaration  which  I  shall  state,  is  one  on  a  policy  "on 
goods,"  averring  a  total  loss  by  "perils  of  the  sea." 

The  declaration  stated: — "For  that  whereas  the  plaintiff,  (a)  heretofore  to 
wit  on,  &c.  (lO)  caused  to  be  made  a  policy  of  assurance,  (setting  it  out  ver- 
batim)  purporting  thereby  and  containing  therein,  that  Messrs.  Boggs,  Taylor, 
&;  Co.,  as  well  in  their  own  names,  as  for  and  in  the  names  of  all  and  every 
person  or  persons  to  whom  the  same  did,  might,  or  should  appertain  in  part  or 
in  all,  did  make  assurance,  and  cause  themselves,  and  them  and  every  of  them 
to  be  insured  with  the  General  Maritime  Assurance  Company,  'lost  or  not 
lost'  (c)  at  and  from  Bombay  to  London,  with  leave  {d)  to  call  at  all  ports  and 
places  on  either  side  of,  and  at  the  Cape  of  Good  Hope,  including  the  risk  of 
craft  to  and  from  the  vessel  (e)  upon  any  kind  of  goods  and  merchandise,  and 

also  upon  the  body,  tackle,  &c.,  of  and  in  the  ship  at [f)  and  upon  the 

said  ship,  &c.,  (_/")  and  so  *should  continue  and  endure  dur-  p    »'ya\      ~\ 

ing  her  abode  there,  upon  the  said  ship,  &c.  5  and  further  until  the  L  J 

said  ship  with  all  her  tackle,  &c.,  and  goods  and  merchandise  whatsoever, 

(a)  See  1  Saund.  74  a,  n.  (2),  n.  (c),  6tli  edit.  2  T.  R.  275.  Jones  v.  Pearce,  2 
Bowling,  54.  Tidd.  624.  Form  of  Aifidavit,  Chilly's  Forms,  553.  1  Saund.  74  a,  n. 
(3),  n.  (c),  and  see  8  M.  &  W.  640;  2  Sir.  1160. 

(6)   1  T.  R.  782  a.  (c)  Tidd.  623,  7  T.  R.  205. 

(d)  The  duties  on  marine  policies  are  fixed  by  7  Vict.  c.  21 ;  see  the  Sched.  to  that  Act. 

(a)  See  ante,  p.  3,  where  the  persons  are  slated  who,  according:  to  28  Geo.  3,  c.  56, 
can  sue  on  a  marine  policy  of  assurance.     And  see  by  Keg.  Gen.  H.  T.  4  Wm.  4.  r.  5, 

(6)  The  dale  of  the  execution  of  the  policy  in  the  margin. 

(c)  See  ante,  p.  12. 

(rf)  See  ante,  p.  208,  as  to  the  clause  "with  leave,"  &c. 

(c)  See  ante,  p.  149,  as  to  this  clause  of  "including  the  risk  to  and  from  the  vessel," 
which  varies  from  the  ordinary  printed  form,  but  which  is  now  frequent  in  practice. 

(/)  These  were  left  blank  in  the  policy. 


434  OF    THK    PROCEEDINGS    IN    THE    ACTION. 

should  be  arrived  at ;  («)  and  upon  the  said  ship,  Sic,  until  she  had  there 

moored  at  anchor  twenty-four  hours  in  good  safety,  and  upon  the  said  goods 
and  merchandise  until  the  same  should  be  there  discharged  and  safely  landed. 
The  insurance  was  declared  to  be  on  360  bales  of  cotton,  and  the  policy,  after 
admitting  tlie  receipt  of  the  premium,  stated,  that  the  said  company  were  con- 
tent, and  did  take  u})on  them  that  assurance  for  the  sum  of  2,000/.  The 
declaration  then  alleged,  that  in  consideration  of  the  premises,  and  that  the 
plaintilf  at  the  request  of  the  defendants,  (then  being  three  of  the  directors  of 
the  said  company)  then  paid  to  the  said  company  the  sum  of  40/.  as  a  premium 
for  the  assurance  of  2,000/.  upon  the  said  goods,  on  the  said  voyage  in  the 
policy  mentioned,  and  then  promised  the  defendants  to  perform  and  fulfil  all 
things  in  the  policy  mentioned,  on  the  behalf  of  the  assured  to  be  performed 
andlulfilled,  the  defendants  then  promised  the  plaintiff  that  the  said  company 
would  become  and  be  assurers  to  the  amount  of  the  said  sum  of  2,000/.  upon 
the  said  goods  in  the  said  ship  in  the  policy  mentioned,  and  would  perform  and 
fulhl  all  things  therein  mentioned  on  their  part  and  behalf,  as  assurers  of  the 
sum  of  2,000/.  to  be  performed  and  fulfdled :  that  the  said  goods  were,  on  the 
Isl  of  September,  1841.  shipped  at  Bombay  on  the  said  voyage  :  that  the  plain- 
tifl'  was,  during  the  said  voyage,  to  wit,  {b)  on  the  same  day  and  year  last 
aforesaid,  interested  (f)  in  the  said  goods  in  the  said  policy  mentioned,  and  so 
loaded  on  board  the  said  ship,  to  the  amount  insured :  that  the  said  insurance 
was  made  for  the  use  and  benefit,  and  on  account  of  the  plaintiff  as  aforesaid : 
r  ^:7q9  -1  t^^e  said  ship  afterwards  sailed  *on  the  said  voyage,  and  being 
L  ■■  ^y-^  J  injured  by  tempestuous  weather,  became  fdled  with  water,  whereby 
the  said  goods  were  wetted  and  damaged,  and  rendered  of  no  use  or  value  to 
the  plaintiff. 

The  second  form  of  a  declaration  which  I  shall  state  is  one  on  a  policy  on 
*'ship,"  averring  the  total  loss  by  "perils  of  the  sea." 

This  was  an  action  on  a  policy  of  insurance  "for  twelve  calendar  months, 
commencing  the  1st  ilf fly,  1835,  and  ending  30th  .^/jn7,  1836,  both  days  inclu- 
sive, in  port  or  at  sea,  in  all  places,  at  all  times,  and  on  all  services,  upon  any 
kind  of  goods  and  merchandises,  and  also  upon  the  body,  tackle,  apparel,  ord- 
nance, munition,  artillery,  boat  and  other  furniture  of  and  in  the  good  ship  or 
vessel  called  the  Sherburne,  valued  at  8,000/."  The  declaration,  after  setting 
out  the  policy,  and  averring  the  plaintiff's  interest  in  the  ship,  stated  that  on 
the  1st  of  May,  1835,  the  said  ship  was  in  safety  in  harbour,  at  Bombay,  in 
the  East  Indies;  that  afterwards,  and  before  the  30th  Jlpril,  1836,  to  wit,  on 
the  20th  Mtgust,  1835,  whilst  the  said  ship  was  protected  by  the  said  policy, 
the  said  ship  was,  by  the  perils  of  the  sea  and  by  stormy  and  tempestuous 
weather,  and  by  the  violence  of  the  winds  and  Avaves  greatly  strained,  bulged, 
broken,  and  otherwise  damaged  in  her  body,  rudder,  bowsprit,  irons,  and  other 
parts,  whereby  it  became  necessary  to  repair  the  damage  done  to  the  said  ship 
as  aforesaid ;  that  after  such  damage  had  arisen  as  aforesaid,  and  in  consequence 
thereof,  the  plaintiff,  by  himself  and  servants  and  agents,  to  wit,  on  the  day 
and  year  last  aforesaid,  did  labour  for,  in,  and  about  the  safeguard,  safety,  and 
preservation  of  the  said  ship  or  vessel,  and  in  so  doing,  and  in  and  about  the 
necessary  repair  of  the  said  ship,  by  reason  of  the  damages  so  by  him  sus- 
tained as  aforesaid,  did  necessarily  lay  out  and  expend  a  large  sum  of  money, 


(a)  See  note  (/),  p.  790. 

{b)  This  allegation  is  not  in  the  usual  form,  see  ante,  p.  13,  where  the  defendants  ad- 
mitted it  in  their  plea,  and  where  the  declaration  was  supported,  and  the  plea  held  bad  on 
demurrer. 

(c)  Every  declaration  must  contain  the  name  of  the  person  or  persons  interested  in  the 
policy.  See  Cousins  v.  Nantes,  3  Taunt,  p.  513,  and  ante,  sect.  4,  where  the  law  of 
interest  is  fully  discussed. 


OF   THE    PROCEEDINGS   IN    THE    ACTION.  435 

.  to  wit,  the  sum  of  1,000/.,  whereby  the  defendant  according  to  the  terms  of  the 
said  policy,  and  of  his  said  promise  and  undertaking,  then  became  liable  to 
pay,  and  ought  to  have  paid  the  plaintiff  150/.,  being  the  rateable  proportion 
of  the  *expense  aforesaid,  which  the  defendant  ought  to  have  paid  ^    ^    „ 
and  contributed  in  respect  of  the  insurance  aforesaid,  whereof  the  L  J 

defendant  then  had  notice,  (a)  and  that  afterwards,  and  during  the  continuance 
of  the  risk,  and  whilst  the  said  ship  in  the  said  policy  of  insurance  mentioned 
was  protected  by  the  said  policy,  to  wit,  on  the  10th  of  October,  1835,  the 
ship,  in  the  said  policy  mentioned,  by  stormy  Aveather.  &c.,  became  and  was 
wholly  lost  to  the  plaintiff,  of  which  premises  he,  the  defendant,  had  notice. 

There  was  also  a  count  for  money  had  and  received,  and  a  count  upon  an 
account  stated. 

Thirdly, — The  declaration  after  setting  out  a  policy  of  insurance,  in  the  usual 
form,  dated  19th  October,  1792,  on  the  Petronelli  "at  and  from  Bayonne  to 
Martinique,  and  at  and  from  thence  to  return  to  Bayonne,^'  and  making  all 
the  necessary  averments,  proceeded:  "And  the  said  Joseph  Furtado  further 
says,  that  afterward  and  after  the  said  ship  had  so  arrived  at  Martinique  afore- 
said, in  the  said  writing  or  policy  of  assurance  mentioned,  and  whilst  she 
remained  there  and  before  her  departure  from  thence,  in  further  prosecution  of 
her  said  voyage,  to  return  to  Bayonne  aforesaid,  to  wit,  on  the  12th  day  of 
November,  in  the  year  of  our  Lord,  1793,  the  said  island  of  Martinique  was 
with  force  and  arms,  and  in  a  hostile  manner,  attacked,  captured,  and  taken  by 
the  forces  of  our  present  sovereign  Lord  the  now  King,  then  being  at  enmity 
and  open  war  with  the  said  island,  and  the  persons  exercising  the  powers  of 
government  in  the  same ;  and  the  said  ship  then  and  there  being  at  the  said 
island  as  aforesaid,  then  and  there  on  the  capture  of  the  same,  was  then  and 
there  seized,  taken,  and  captured  by  the  said  forces  of  our  said  Lord  the  King, 
as  a  prize,  and  thereby  the  same  ship  with  all  her  tackle,  apparel,  ordnance, 
munition,  boat,  and  other  furniture  thereof  became  and  was  totally  lost  to  the 
*said  Joseph  Furtado,  to  wit,  at  London  aforesaid,  in  the  parish  r-  ^704.  n 
and  ward  aforesaid."  L  -* 

Fourthly. — This  was  an  action  of  assumpsit  on  a  policy  of  assurance.  The 
declaration  stated  that  the  plaintiff  caused  himself  to  be  insured,  "lost  or  not 
lost,"  at  and  from  Calcutta,  or  any  port  or  ports,  place  or  places,  all  or  any, 
and  in  any  succession,  on  the  Coromandel  coast,  to  any  port  or  ports,  place  or 
places,  in  Bourbon,  upon  any  kind  of  goods  and  merchandises,  and  also  upon 
the  body,  tackle,  apparel,  ordnance,  munition,  artillery,  boat,  and  other  furni- 
ture of,  and  in  the  good  ship  called  La  France,  beginning  the  adventure  upon  the 
said  goods  and  merchandises,  from  the  loading  thereof  on  board  the  said  ship  at 
as  aforesaid,  upon  the  said  ship  at  as  aforesaid,  and  so  to  continue  and  endure 
upon  the  said  ship  until  she  should  be  arrived  at  Bourbon  aforesaid,  and  be  moor- 
ed at  anchor  "twenty-four"  hours  in  good  safety,  and  upon  the  goods  and  mer- 
chandises, until  they  should  be  discharged  and  safely  landed.  It  was  to  be  lawful 
for  said  ship  in  that  voyage,  to  proceed  and  sail  to  and  touch  and  stay  at  any  port 
or  ports,  place  or  places  whatsoever,  without  prejudice  to  this  insurance :  the 
said  ship,  goods,  and  merchandises,  &:c.,  for  so  much  as  concerned  the  assured, 
by  agreement  between  the  assured  and  assurers  in  this  policy,  are  to  be  valued 
at  1,000/.  :  the  peiils  the  assurers  were  contented  to  take  themselves,  were  of 
the  sea,  &c.,  and  all  other  perils,  losses  and  misfortunes  that  had,  or  should 
come  to  the  detriment,  or  damage  of  the  said  goods  and  merchandises  or  ship, 

(a)  See  ante,  pp.  443,  449,  that  the  assured  cannot  recover  the  expense  which  would 
have  been  incurred  if  a  certain  damage  had  been  repaired,  which  it  was  not,  owing  to  the 
subsequent  total  loss  of  the  ship. 


436  OF    THE    PROCEEDINGS    IN    THE    ACTION. 

or  any  part  thereof :  and  by  a  certain  memorandum  made  on  the  said  writing 
or  policy  of  assurance,  the  said  assurance  was  declared  to  be  on  1,000/.  on  the* 
"freij^ht"  of  the  said  vessel,  valued  at  1,000/.  Averment  of  promise  by  the 
defendant  to  become  an  assurer,  in  consideration  of  having  received  the  pre- 
mium ;  of  interest  in  the  assured ;  that  the  ship  was  in  good  safety  at  a  certain 
port  on  the  Coromandel  coast,  called  Coringa;  and  that  whilst  the  sliip  was 
at  Coringa  aforesaid,  and  before  the  time  of  the  loss  thereinafter  mentioned, 
r  *7qp;  "i  clivers  goods  and  merchandises  amounting  *to  a  full  cargo  of  the 
L  -'  said  ship,  which  had  been  bought,  procured,  and  contracted  for, 

for  and  on  account  of  the  said  person  so  interested  in  the  subject-matter  of 
insurance  as  aforesaid,  were  there,  to  wit,  at  Coringa  aforesaid,  for  the  pur- 
pose of  being  shipped  and  loaded,  and  which,  but  for  the  loss  thereinafter 
mentioned,  would  have  shipped  and  loaded  in  and  on  board  the  said  ship,  to 
be  conveyed  therein  on  the  said  voyage  in  the  policy  of  assurance  mentioned, 
to  wit,  from  the  Coro7nandel  const  aforesaid  to  Bourbon  aforesaid;  that  after- 
wards, and  whilst  the  ship  was  at  Coringa  aforesaid,  and  during  the  continuance 
of  the  risk  in  the  said  policy  mentioned,  to  wit,  on,  &c.,  the  said  ship  was 
broken,  damaged,  and  destroyed,  and  rendered  wholly  incapable  of  pursuing 
the  said  voyage  aforesaid,  by  certain  perils  which  the  said  assurers  by  the  said 
policy  did  take  upon  them  as  aforesaid,  to  wit,  by  the  accidental  breaking  and 
giving  way  of  the  tackle  and  supports,  whereby  the  said  ship  was  supported, 
in  being  moved  from  a  certain  dock ;  in  consequence  of  which  breaking  and 
giving  way,  the  ship  violently  struck  against  the  sand,  and  was  bilged,  broken, 
destroyed,  damaged,  and  rendered  incapable  of  pursuing  the  said  voyage  as 
aforesaid :  and  the  said  ship  and  the  freight,  and  all  benefit,  profit,  and  advan- 
tage which  the  said  person  so  interested  as  aforesaid,  would  have  derived  and 
acquired  from  the  employment  of  the  said  ship  in  carrying  and  conveying  the 
said  goods  and  merchandises  on  the  said  voyage  in  the  said  policy  mentioned, 
and  the  means  of  carrying  and  conveying  the  said  goods  and  merchandise  were 
by  the  means  aforesaid  wholly  lost  to  the  said  person  so  interested  as  afore- 
said;  whereof  the  defendant,  afterwards  to  wit,  on,  &;c.,  had  notice;  by  reason 
whereof,  the  defendant  became  and  was  liable  to  pay,  and  ought  to  have  paid 
the  sum  of  200/.  so  by  him  insured  as  aforesaid. 

There  was  also  a  count  for  money  had  and  received,  (o) 
r    *7qR     ~i      *^'   '^'^^  plaintiff  or  his  attorney,  having  delivered  his  declara- 
L  J  tion  to  the  defendant  or  his  attorney,  the  defendant  must  plead  to 

the  declaration.  And  by  the  rules  of  H.  T.  4  Wra.  4,  the  plea  of  non- 
assumpsit  operates  only  as  a  denial  "of  the  subscription  to  the  policy  by  the 
defendant,  and  not  of  the  interest,  of  the  commencement  of  the  risk,  of  the 
loss,  or  of  the  alleged  compliance  of  warranties."  And  all  matters  in  con- 
fession and  avoidance  of  the  action,  as  unseaworthiness,  misrepresentation, 
concealment,  deviation,  and  various  other  defences  must  be  especially  pleaded." 

The  plea  of  money  paid  into  Court,  (6)  may  be  either  for  the  purpose  of 
meeting  an  average  loss  sustained  by  the  ship  or  cargo,  or  often  a  general  aver- 
age upon  the  cargo.  And  to  the  money  counts,  the  defendant  frequently  pays 
the  value  of  the  premium  into  Court.  The  plaintiff,  after  a  delivery  of  a  plea 
of  payment  of  money  into  Court,  shall  be  at  liberty  to  reply  to  the  same  by 
accepting  the  sum  so  paid  into  Court  in  full  satisfaction,  and  discharge  of  the 
cause  of  action  in  respect  of  which  it  has  been  paid  in ;  and  he  shall  be  at 

(a)  The  reader  is  here  referred  to  page  505  of  this  Treatise,  where  he  will  find  fully 
stated  the  declaration,  pleas,  and  replication,  in  the  recent  and  important  case  of  Milward 
V.  Hibbert,  3  Q.  B.  120. 

(6)  The  form  Reg.  Gen.  1  Vict. 


OF   THE    PROCEEDINGS    IN    THE    ACTION.  437 

liberty  in  thai  cnse  to  tax  his  costs  of  suit,  and  in  case  of  non-payment  thereof 
within  forty-eight  hours,  to  sign  judgment  for  his  costs  so  taxed;  or  the  plain- 
tiff may  reply,  "that  he  has  sustained  damages,  (or,  "that  the  defendant  was 
and  is  indebted  to  him,"  as  the  case  may  be.)  to  a  greater  amount  than  the  said 
sum ;  and  in  the  event  of  an  issue  thereon  being  found  for  the  defendant,  the 
defendant  shall  be  entitled  to  judgment  and  his  costs  of  suit. 

When  the  assured  are  not  entided  to  recover  on  the  policy,  but  are  entiUed 
to  a  return  of  premium,  money  should  be  paid  into  Court,  on  the  count  for 
money  had  and  received.  The  payment  of  money  into  Court  admits  the 
contract  stated  in  any  count  to  which  the  payment  applies ;  on  a  special  count 
it  admits  the  special  contract  declared  upon;  on  an  indebitatus  count,  it  admits 
a  liability  on  some  one  or  more  contracts,  to  the  amount  of  the  sum  paid  in;  (6) 
and  therefore  *the  Court  of  King's  Bench  held,  in  the  case  of  p  ^'^n-y  -i 
Jlndreivs  v.  Palsgrave,  [a)  that  where  the  defendant  paid  money  L  J 

into  Court  generally  on  a  declaration  containing  a  count  in  a  policy  of  insu- 
rance, and  the  common  money  counts  that  that  was  an  admission  of  the  policy 
as  stated  in  the  declaration,  and  that  the  defendant  could  not  show  by  evidence 
that  the  original  terms  of  the  insurance  was  that  the  risk  was  only  to  continue 
for  twenty-four  hours,  and  that  it  was  afterwards  altered  by  the  broker  without 
their  knowledge.  But  where  another  defendant,  in  another  action  on  the  same 
policy,  had  paid  money  into  Court  on  the  count  for  money  had  and  received, 
in  another  action  on  the  same  policy,  and  the  broker  proving  the  alteration  to 
have  been  made,  as  above  stated,  the  plaintiffs  were  nonsuited.  But  in  the 
case  of  Midler  v.  Hartshorne,  (b)  which  was  an  action  on  a  policy  on  goods, 
and  the  defendant  had  paid  money  into  Court  generally  on  the  whole  declara- 
tion, and  the  only  question  in  the  cause  was  fraud  in  effecting  the  policy  after 
the  ship  had  sailed  and  was  lost,  and  the  plaintiff  contended  that  the  defendant 
having  paid  the  premium  into  Court  generally  on  the  declaration,  was  precluded 
from  going  into  a  question  of  the  validity  of  the  contract,  but  must  confine 
himself  to  such  as  only  went  to  reduce  the  value  of  the  goods  insured,  Lord 
Mvanley,  C.  J.,  held,  that  as  the  plaintiff  had  by  his  conduct  up  to  the  time 
of  the  trial,  in  allowing  the  defendant  after  paying  the  premium  into  Court,  to 
go  on  preparing  his  defence  to  meet  the  only  point  in  question,  viz :  that  of 
fraud,  that  he  was  not  in  a  situation  to  avad  himself  of  such  an  objection. 

But  it  is  to  be  observed  that  a  plaintiff,  in  setting  forth  the  ground  of  his 
demand  upon  the  defendant,  is  at  liberty  to  state  different  claims  upon  the 
record,  though  inconsistent  with  each  other,  without  subjecting  himself  thereby 
to  have  one  of  such  claims  set  up  in  answer  to  the  other,  (c)  p  «7qQ  t 
Whatever  *issnes  are  joined  upon  any  counts  or  pleas,  are  to  be  •-  -' 

tried  by  the  jury  distincdy  from  each  other.  If  not  guilty,  and  a  justification 
is  pleaded  to  a  declaration  in  trespass,  the  admission  of  the  trespass  in  the 
justification  will  not  entitle  the  plaintiff  to  a  verdict  on  the  plea  of  not  guilty,  (a) 

And  therefore  in  the  case  of  Gould  and  others  v.  Oliver,  referred  to  in  a 
former  part  of  this  Treatise,  {b)  which  was  an  action  brought  by  the  freighters 
on  a  charter-party  against  the  owners  for  an  improper  stowage  of  the  cargo, 
and  there  was  a  second  count  in  the  declaration,  claiming  a  contribution  for  a 

(b)  See  Kingbam  v.  Robins,  5  M.  &  W.  94.     Stapleton  v.  Nowell,  6  M.  &  W.  9. 
(a)  9  East,  325.     See  also  Mellisb  v.  Allnutt,  2  M.  &  S.  106.     Rucker  v.  Palsgrave, 

1  Taunt.  419.     Everetb  v.  Bell,  7  Taunt.  450. 
(6)   3  Bos.  &  Pull.  556. 

(c)  By  the  Court  in  Gould  v.  Oliver,  2  Scott's  N.  R.  262. 

(a)  Harrington  v.  Macmorris,  5  Taunt.  228.     Montgomery  v.  Richardson,  5  C.  &  P. 
247.     Edmunds  v.  Groves,  2  M.  &  W.  642. 
(Z»)  Ante,  p.  20. 


438  OF   THE    PROCEEDINGS    IN   THE    ACTION. 

general  average  in  respect  of  the  deck  cargo,  which  had  been  thrdwn  overboard 
in  tempestuous  weather,  and  the  ship  afterwards  saved,  and  which  count  aver- 
red a  stowage  of  the  plaintiffs'  goods  according  to  the  custom  of  trade,  and  the 
defendant  had  paid  money  into  Court  on  that  count,  which  the  plaintiffs  took 
out  in  satisfaction  of  that  part  of  their  demand,  it  was  held  by  the  Court  that 
this  fact  could  not  at  the  trial  be  given  in  evidence  as  an  acknowledgment  by 
the  plaintiffs  that  the  goods  had  been  properly  stowed.  And  Lord  Chief  Jus- 
tice T'uidal,  who  delivered  the  judgment  of  the  Court,  observes, — "The  effect 
of  the  pleadings  is  this  :  the  plaintiffs  claim  a  total  loss  upon  their  goods,  in 
consequence  of  the  misconduct  of  the  defendant  j  and,  in  case  they  should  fail 
in  establishing  such  misconduct  in  the  defendant,  they  claim  a  partial  compen- 
sation for  the  sacrifice  of  their  goods  in  the  shape  of  general  average.  The 
defendant,  admitting  the  second  claim,  pays  it  into  Court,  which  the  plaintiffs 
take  out,  having  no  claim  in  this  view  beyond  the  amount  paid  in.  But,  in  so 
doing,  they  do  not  abandon  the  claim  which  they  have  preferred  in  the  first 
count  of  the  declaration,  and  upon  which  issues  remain  to  be  tried.  They 
would  not,  indeed,  be  permitted  to  retain  the  whole  amount  of  loss  under  the 
first  count,  and  the  amount  of  general  average  under  the  second ;  but  they  are 
r  *7qq  ~]  ""^^  ^^  ^^  *deprived  of  their  right  to  insist  that  a  total  loss  has  been 
L  J  sustained  by  the  misconduct  of  the  defendant,  (o) 

In  the  very  late  case  of  Harrison  v.  Douglas,  (b)  which  Avas  an  action,  not 
on  a  common  marine  policy,  but  one  in  whicli  the  plaintiff,  the  defendant,  and 
other  persons,  were  mutual  insurers  on  their  respective  ships  for  the  period  of 
one  year,  the  payment  of  money  into  Court  was  held  to  amount,  first,  to  a 
waiver  of  an  objection  of  the  non-performance  of  a  condition  precedent  j  and, 
secondly,  to  a  waiver  of  an  otherwise  valid  objection,  that  the  action  was 
brought  too  soon.  The  policy  contained  at  the  foot  of  it  a  condition  that  all 
ships  were  to  be  inspected  and  approved  of  by  a  majority  of  the  committee  of 
insurers  before  admission  ;  that  all  ships  should  be  well  found,  &c.,  and  otherwise 
in  a  seaworthy  state ;  that  all  vessels  should  have  a  certain  quantity  of  rope  or 
chain  cable,  according  to  their  respective  burthens,  and  that  all  "chain  cables 
should  be  properly  tested;"  and,  in  case  of  non-compliance  with  orders  to 
repair  made  by  the  committee  or  the  inspector,  the  parties  neglecting  to  be 
uninsured.  The  policy  declared  tliat  certain  rules  should  be  deemed  a  compo- 
nent part  of  the  policy.  And  by  one  of  the  rules  the  assured  was  not  entitled 
to  be  paid  in  case  of  a  loss,  till  a  period  which  was  shewn  by  the  evidence  not 
to  have  happened  at  tlie  time  this  action  was  brought.  The  money  was  paid 
into  Court  on  two  counts,  one  of  which  was  on  the  policy,  averring  generally 
a  performance  by  the  plaintiff  of  all  things  in  the  policy  contained  to  be  per- 
formed on  his  part,  and  a  compliance  with  all  the  conditions  referred  to ;  and 
on  a  count  for  money  had  and  received,  and  on  an  account  stated.  At  the  trial, 
the  defendant  contended  that  the  plaintilf  should  be  nonsuited  on  two  grounds, 
first,  that  the  chain  cable  of  the  ship  was  not  properly  tested  according  to  the 
first  rule ;  and  secondly,  that  the  action  was  brought  too  soon  under  the  other 
rule  above  referred  to ;  and  the  defendant  had  leave  given  him  to  move  on  both 
r  *ftnn  ~l  ^^^^^  grounds.  *The  judgment  of  the  Court  was  afterwards  de- 
'-  J  livered  by  Lord  Chief  Justice  Bennian,  who  said  that  the  Court 

were  of  opinion  that  the  chain  cable  being  properly  tested,  taken  by  itself, 
without  more,  was  not  a  condition  precedent;  but  that,  suppose  it  was  other- 
wise, it  was  in  the  nature  of  a  want  of  seaworthiness,  and  the  opinion  of  the 
jury  should  have  been  taken  on  it ;  and  that,  independently  of  that,  they 
thought  that  by  payment  of  money  into  Court,  tlie  objection,  if  it  ever  existed, 

(a)  See  2  Scott's  N.  R.  263.  (i)  3  A.  &  E.  396. 


OF    THE    PROCEEDINGS    IN    THE    ACTION.  439 

was  cured ;  for  that  admitted  that  the  plaintiff  was  entitled  to  recover  some- 
thing, which  he  could  not  be,  if  the  vessel  were  not  seaworthy.  And  that  as 
to  the  second  ground  of  nonsuit,  there  was  no  doubt  but  that  the  action  was 
brought  too  soon ;  and  that  it  would  be  a  cause  of  nonsuit,  if  it  had  not  been 
for  the  paying  money  into  Court :  that  that  admitted  to  some  extent,  at  least, 
that  the  plaintiff  was  entitled  to  recover,  (a) 

Having  mentioned  the  effect  of  paying  money  into  Court  by  the  defendant, 
I  come  now  to  state  one  or  two  examples  of  pleas  as  I  said  I  intended  to  do. 

The  first  pleas  I  shall  mention  are  those  which  were  in  fact  pleaded  by  the 
defendant  to  the  declaration,  form  of  No.  (1.)  (6) 

The  defendants  pleaded  eight  pleas,  (but  we  shall  confine  ourselves  to  a  part 
of  them. ) 

The  defendants  pleaded  in  the  first  place  non-assumpserunt. 

Secondly,  for  a  plea  in  this  behalf  they  stated ;  that  true  it  was  that  the 
policy  of  assurance  purporting  and  containing  therein  that  Boggs,  Taylor  & 
Co.,  did  make  assurance  of  the  matters  and  things  according  to  the  terms  and 
provisions  of  the  said  policy,  as  in  that  behalf  in  the  declaration  mentioned  and 
set  forth,  was  made,  to  wit,  upon  the  day  in  that  behalf  in  the  declaration 
alleged:  yet  the  defendants  said,  *that  the  said  policy  was  not  p  ^^^,  -, 
caused  to  be  made  by  or  on  behalf  of  the  plaintiff,  in  manner  and  ^  J 

form  as  alleged  :  concluding  to  the  country. 

Thirdly,  for  a  plea  in  this  behalf,  the  defendants  say  that  the  plaintiff  did 
not,  nor  did  any  person  on  his  behalf  pay  the  said  premium  or  any  part  thereof, 
nor  promise  the  defendants  to  perform  and  fulfil  the  things  in  the  said  policy 
mentioned,  on  behalf  of  the  assured  to  be  performed  and  fulfilled  in  manner  and 
form  alleged  :  concluding  to  the  country. 

Eighthly,  for  a  plea  in  this  behalf  the  defendants  say,  that  although  the  said 
ship  witli  the  said  goods  on  board,  set  sail  upon  the  voyage  from  Bombay  to 
London,  and  although  the  said  goods  were  damaged  and  diminished  in  use  and 
value  on  the  said  voyage,  as  in  the  declaration  mentioned ;  and  although,  after 
the  commencement  and  during  the  course  of  the  said  voyage,  and  after  the  ship 
had  sailed  on  the  said  voyage  for  divers,  to  wit,  thirty-five  days,  and  for  divers, 
to  wit,  1,000  miles,  the  plaintiff  acquired  an  interest  in  the  said  goods,  to  wit, 
to  the  value  and  amount  in  that  behalf  mentioned :  nevertheless,  that  the  said 
goods  were  so  damaged  and  diminished  in  value  as  in  the  declaration  mentioned 
before  the  plaintiff  acquired  or  had  any  interest  therein,  to  wit,  upon  the  20th 
day  of  August,  a.  d.  1841.     Verification. 

The  plaintiff  demurred  specially  to  the  second  and  third  pleas,  on  the  ground 
that  they  amounted  to  pleas  of  the  general  issue,  and  that  the  matters  alleged 
in  them  ought  to  have  been  given  in  evidence  under  the  issue  joined  in  that 
plea ;  and  pleading  in  the  manner  as  pleaded  by  the  defendants  tended  to  unne- 
cessary prolixity  and  delay.  To  the  eighth  plea,  the  plaintiff  demurred  gen- 
erally :  and  the  point  marked  for  argument  on  his  part  was,  that  a  policy  being 
made  "lost  or  not  lost,"  the  defendants  were  responsible  for  the  loss,  notwith- 
standing it  happened  before  the  plaintiff  acquired  an  interest  in  the  goods,  (c) 

*I  shall  now  state  the  pleas  which  were  pleaded  to  the  second  p  *Qno  ~i 
form  of  declaration,  {d)  '-  -' 


(rt)  See  the  cases  of  Meager  v.  Smith,  4  B.  &  Ad.  673.  Lundie  v.  Robertson,  7  East, 
231.  Early  v.  Bowman,  1  B.  &  Ad.  889,  as  to  the  effect  of  the  admission  by  payment  of 
money  into  Court  on  the  question  as  to  the  performance  of  a  condition  precedent. 

(6)  Ante. 

(c)  Ante,  p.  33,  and  see  11  M.  «&  W.  299. 

\d)  Ante,  p.  792. 


440  OF    THE    PROCEEDINGS    IN    THE    ACTION. 

First,  as  to  so  much  of  the  first  count  as  states  that  the  vessel  was  by  the 
perils  and  dangers  of  the  sea,  and  by  stormy  and  tempestuous  weather,  and 
violence  of  the  winds  and  waves,  o^really  strained,  bulged,  broken,  and  other- 
wise damaged,  and  that  tlie  plaintiff  by  reason  thereof  laboured  for  and  about 
the  safeguard,  safety,  and  preservation  of  the  said  ship,  and  that  the  plaintiff 
did,  after  such  damage  had  arisen,  and  in  consequence  thereof,  labour  for  and 
about  the  safeguard,  safety  and  preservation  of  the  vessel,  and  in  so  doing,  and 
in  and  about  the  necessary  repairs  of  the  said  vessel,  by  reason  of  the  damages, 
did  necessarily  lay  out  and  expend  a  large  sum  of  money — the  defendant  said, 
that  the  plaintiff  ought  not  further  to  maintain  his  action,  because  the  defendant 
brought  into  Court  the  sum  of  18/.  18*.  ready  to  be  paid  to  the  plaintiff,  and  the 
defendant  said  that  the  plaintiff  had  not  sustained  damages  to  a  greater  amount 
than  the  said  sum  of  18/.  18s.,  in  respect  of  so  much  of  the  cause  of  action  in 
the  introductory  part  of  that  plea  mentioned ;  and  this  he  is  ready  to  verify, 
wherefore  he  prayed  judgment,  if  the  plaintiff  ought  further  to  maintain  his 
action  in  respect  of  the  premises  in  the  introductory  part  of  the  plea  mentioned. 

Secondly. — As  to  so  much  of  the  first  count  as  stated,  that  the  said  ship  or 
vessel  was  lost  by  stormy  winds  and  tempestuous  weather,  or  by  the  perils  or 
dangers  of  the  sea — that  the  said  ship  or  vessel  was  not  lost  by  stormy  winds 
and  tempestuous  v/eather,  or  by  the  perils  or  dangers  of  the  sea,  as  in  the  first 
count  mentioned  ;  concludmg  to  the  country. 

Thirdly. — To  the  second  and  third  counts,  non  assumpsit,  [b) 

Pleas  to  fourth  form  of  declaration,  (c) 

The  defendant  pleads. — First,  that  the  goods  and  merchandises  in  the  decla- 
ration in  that  behalf  mentioned,  had  not  before  and  at  the  time  of  the  loss  in  the 
r  *ii(\'i  1  ^^'^^  count  ^mentioned,  been  bought,  procured,  and  contracted  for, 
L  -'  for  and  on  account  of  the  said  person  in  the  declaration  in  that 

behalf  mentioned,  to  be  carried  and  conveyed  in  the  said  ship. 

Secondly. — That  at  the  time  of  the  loss  in  the  declaration  mentioned,  the  risk 
in  the  said  writing  or  policy  of  insurance  mentioned,  had  not  commenced,  and 
the  said  writing  or  policy  of  insurance  had  not  attached  in  manner  and  form  as 
in  and  by  the  declaration  was  alleged. 

Thirdly. — That  the  said  ship  was  not  at  the  time  of  the  commencement  of 
the  risk  insured  against  by  the  said  policy  in  the  declaration  mentioned,  sea- 
worthy. 

Fourthly. — That  the  said  ship  was  not  broken,  damaged,  and  destroyed,  and 
rendered  incapable  of  pursuing  the  said  voyage  by  any  perils  which  the  said 
assurers  by  the  said  policy  did  take  upon  themselves,  in  manner  and  form  as  in 
and  by  the  said  declaration  was  alleged. 

Fifthly. — That  the  ship  was  not  at  any  time  after  the  making  of  the  said 
policy,  and  before  the  said  loss  in  the  first  count  mentioned,  in  good  safety  at 
any  port  or  place  on  the  Coromandel  coast  in  the  said  policy  mentioned,  in 
manner  and  form  as  by  the  declaration  was  alleged. 

Sixthly. — As  to  the  money  alleged  to  have  been  received  by  the  defendant  to 
the  use  of  the  plaintiff,  that  the  defendant  brought  into  Court  20/.  lOs.,  beyond 
which  the  plaintiff  had  sustained  no  damage. 

Seventhly. — To  the  residue  of  tlie  declaration,  that  the  defendant  did  not 
promise  modo  et  forma. 

6.  The  issue  having  been  joined,  it  is  necessary  to  shoAV  how  the  plaintiff  is 
to  prove  his  case.  Proof  of  the  defendant's  subscription  to  the  policy,  or  of 
some  person  subscribing  for  him  by  his  authority,  may  in  some  cases  be  neces- 
sary, though  the  subscription  is  in  ordinary  cases  admitted. 

(6)  6  Scott'3  N.  R,  928.  (c)  Ante,  p.  794,  and  7  Scott,  509. 


OF    THE    PROCEKDINGS    IN    THE    ACTION.  441 

In  the  case  of  Neale  v.  Ervins:;,  (d)  where  an  action  was  brought  upon  a 
policy  in  which  the  policy  was  siirned  by  one  *IIutc;hiiis,  fur  the  ^  «Qn^ 
defendant.  The  witness  said  he  did  not  know  by  what  authority,  L  ''"'*  J 
but  that  Hutchins  had  been  in  the  constant  habit  of  subscribing  policies  for  the 
defendant,  and  had  done  several  for  the  witness,  and  for  others,  to  his  know- 
ledge. Lord  Kenyan  was  of  opinion,  that  the  acts  of  Hutchins  held  him  out 
to  the  world  as  properly  authorized,  and  his  having  subscribed  several  policies 
was  sufTicient  to  bind  the  defendant,  who,  and  not  Ihe  plainlifT,  ought  to  prove 
that  his  power  was  limited.  And  where  a  witness  stated  that  he  was  author- 
ized by  a  power  of  attorney,  but  added,  that  the  defendant  had  been  in  the 
habit  of  i)aying  losses  upon  policies,  which  the  witness  had  subscribed  in  his 
name.  Lord  Ellenhoroiigh  ruled  that  the  power  of  attorney  need  not  be  pro- 
duced. Ihaighlon  v.  Eivbank.  (a)  But  in  the  case  of  Courteen  v.  Toiise,  ib) 
where  a  witness  proved  the  agent's  handv/riting,  and  swore  he  had  often  seen 
him  sign  policies  for  the  defendant,  but  he  had  never  seen  any  general  power 
of  attorney  from  the  defendant  to  the  agent,  nor  did  he  know  that  the  defendant 
had  given  tlie  agent  any  authority  to  sign  the  policy  in  question,  nor  was  he 
acquainted  with  any  instance  in  which  the  defendant  had  paid  a  loss  upon  a 
policy  so  subscribed :  Lord  Ellenboroiigh  held  tliat  the  proof  of  agency  must 
be  carried  further. 

7.  The  plaintiff  having  averred  in  his  declaration,  that  he  is  interested  to  the 
amount  of  the  property  insured,  it  is  necessary  that  he  should  prove  his  interest 
in  the  subject-matter,  but  in  a  valued  policy  it  is  not  required  of  him  to  prove 
the  whole.  This  will  be  done  by  the  production  of  the  bills  of  sale,  bills  of 
parcels,  and  the  costs  of  the  outfit;  the  bills  of  lading  signed  by  the  master,  spe- 
cifying the  goods  received  on  board,  and  for  whom  he  is  to  carry  them.  In 
addition  to  the  bill  of  lading,  &c.,  it  is  usual  to  call  the  captain  or  some  other 
person  to  prove  that  the  goods  mentioned  in  it  were  actually  on  board.  jyfJln- 
drew  V.  Bell,  (c)  The  case  of  ^Caldwell  and  others  v.  Bcdl,  (a)  p  *qac  t 
was  a  case  where  the  law  relating  to  bills  of  lading  was  much  con-  L  J 
sidered.  The  Court  held  that  a  bill  of  lading  is  an  acknowledsfment  under  the 
hand  of  the  master,  that  he  has  received  such  goods,  which  he  undertakes  to 
deliver  to  the  person  named  in  the  bill  of  lading ;  that  it  is  assignable  in  its 
nature,  and  by  endorsement  the  property  is  vested  in  the  assignee. 

But  if,  as  in  the  case  of  Haddow  v.  Parry.,  [b)  the  master  qualifies  his 
acknowledgment  by  the  words  "contents  not  known,"  the  bill  of  lading  is  not 
evidence.  If  the  master  is  dead,  proof  of  his  death  and  his  handwriting  is 
sufficient,  (c)  But  it  was  held  in  Dickson  v.  Lodge.,  [d)  that  the  bill  of  lading 
is  not  evidence  of  the  shipment  if  the  master  be  aliva,  he  ought  to  be  called, 
or  the  mate,  or  some  party  acquainted  with  the  fact. 

8.  If  the  assured  has  exercised  acts  of  ownership,  in  directing  the  loading, 
&c.,  of  the  ship,  and  paying  the  people  employed,  this  has  been  held  to  be 
prima  facie  sufficient  proof  of  ownership  in  the  vessel.      Aniery  v.  Rogers,  (e) 

In  the  case  of  Robertson  v.  French^  [f)  it  is  laid  down  that  the  ordinary 
mode  is  to  call  the  captain  of  the  vessel  to  prove  that  he  was  appointed  and 
employed  by  the  parties,  and  even  should  it  appear  on  cross-examination  that 

(r/)    1  Esp.  61. 

(«)  4  Camp,  and  see  Broclebanlc  v.  Sugrue,  5  C.  &  P.  21. 
lb)   1  Camp.  43.  (c)    1  Esp.  373. 

In)   1  T.  R.  205.     See  Bryans  v.  Nix,  4  M.  &  W.  775. 
(b)  3  Taunt.  303.  (c)   See  tfie  Factors'  Act. 

Id)   I  Stark.  226 

(e)  1  Esp.  R.  207,  and  see  Thomas  v,  Foyle,  5  Esp.  88.  Abbott  on  Shipp.  78  (6th 
edit.)  (/)  4  East,  137. 


442  OF  THE  PROCEEDINGS  IN  THE  ACTION. 

the  ownership  was  devised  to  those  persons  under  a  bill  of  sale,  it  is  not  on 
that  account  necessary  to  produce  the  bill  of  sale  on  the  ship's  register,  or  to 
give  any  further  proof  of  their  property :  the  mere  fact  of  their  possession  as 
owners  being  sufficient  prima  facie  evidence  of  ownership,  without  the  aid  of 
any  documentary  proof  or  title  deeds  on  the  subject,  until  some  further  evidence 
should  be  rendered  necessary  in  support  of  the  prima  facie  case  of  ownership 
which  is  made  in  consequence  of  the  adduction  of  some  contrary  proof  on  the 
r  *snfi  "1  o^^^'^^'  ^^^^'  *And  it  was  also  held  that  such  parol  evidence  of 
L  o  0  J  ()^^j^gj.gi^ip^  at  a  particular  period,  was  not  disproved  by  the  pro- 
duction of  a  prior  register  in  the  name  of  another  and  subsequent  register  to 
the  same  person  upon  a  sale  under  a  decree  of  the  Vice  Chancellor's  Court, 
those  being  perfectly  consistent  with  the  title  in  odier  persons  in  the  meantime. 
Sutton  V.  Buck,  (a) 

And  in  the  case  of  Pirie  v.  Jlnderson,  {h)  it  was  held  the  original  certificate 
of  the  ship's  registry  is  no  evidence  for  the  plaintiff  on  a  policy  of  assurance 
that  the  interest  in  the  ship  is  in  the  persons  in  whom  it  is  averred.  And 
because  the  tide  of  the  ship  is  not  complete  without  the  register  that  is  no  reason 
why  the  register  alone  should  be  proof  of  the  tide. 

In  Floioer  v.  Young  [c]  Lord  Ellenborough  says,  "how  can  the  register  be 
evidence  for  a  man?  It  may  be  evidence  against  him  if  he  has  signed  it;  but 
it  can  amoimt  to  no  more  than  a  declaration  that  he  is  owner,  which  a  man 
cannot  convert  into  evidence  of  his  own  tide.  If  the  register  were  recognized 
as  a  public  document  to  prove  the  ownership,  it  would  be  evidence  both  against 
and  for  all  the  persons  whose  names  appear  upon  it.  However,  we  can  con- 
sider it  as  a  private  instrument  only  ;  and,  therefore,  although  it  be  evidence 
as  an  acknowledgment  against  the  persons  who  sign  it,  it  cannot  be  evidence  in 
their  favour."  {d) 

But  as  in  lieid  v.  Darby,  (e)  if  the  tide  of  the  ship  really  comes  into  ques- 
tion, no  claim  can  be  set  up  in  opposition  to  the  Legislative  enactments  on  this 
subject.  The  Registry  Acts  are  now  consolidated  and  comprised  in  one  act, 
r  *8n7  -1  3  &  4  Wm.  4,  c.  55,  by  which  it  is  enacted,  "that  no  ship  or 
L  J  vessel  *shall  be  entitled  to  any  of  the  privileges  or  advantages  of  a 

British  registered  ship  unless  the  person  or  persons  claiming  property  therein 
shall  have  caused  the  same  to  be  registered,  in  virtue  of  the  6  Geo.  4,  c.  110, 
or  of  the  4  Geo.  4,  c.  41,  or  until  such  person  or  persons  shall  have  caused 
the  same  to  be  registered  in  manner  thereinafter  mentioned,  and  shall  have 
obtained  a  certificate  of  such  registry  from  the  person  or  persons  authorized  to 
make  such  registry,  and  grant  such  certificate  as  thereinafter  directed."  (a)  And 
it  is  further  enacted,  "tRat  in  case  any  ship  or  vessel  not  being  duly  registered, 
and  not  having  obtained  such  certificate  of  registry  as  aforesaid,  shall  exercise 
any  of  the  privileges  of  a  British  ship,  the  same  shall  be  subject  to  forfeiture, 
and  also  all  the  guns,  furniture,  ammunition,  tackle,  and  apparel  to  the  same 
ship  or  vessel  belonging,  and  shall  and  may  be  seized  by  any  officer  or  officers 
of  his  Majesty's  customs."  (i) 

"That  where  the  property  in  any  ship,  or  any  part  thereof,  belonging  to 
any  of  his  Majesty's  subjects,  shall  be  sold  to  any  other  of  his  Majesty's  sub- 

(a)  2  Taunt.  302.  (b)  4  Taunt.  652. 

(c)  3  Camp.  240. 

(d)  By  the  72nd  section  of  the  Bankrupt  Act,  6  Geo.  4,  c.  16,  it  is  provided  "that 
nothing  therein  contained  shall  invalidate  or  afTcct  any  transfer  or  assignment  of  any  ship  or 
vessel,  or  any  share  thereof,  made  as  a  security  for  any  debt  or  debts,  either  by  way  of  mort- 
gage or  assignment  duly  registered  under  the  provisions  of  an  act  of  Parliament  made  in  the 
fourth  year  of  his  present  Majesty,  intituled  ♦An  Act  for  the  registering  of  Vessels.'  " 

(e)  10  East,  143.  (a)  Sect.  2,  and  see  the  form  in  the  act. 
(6)  Sect.  4. 


OF    THE    PROCEEDINGS    IN    THE    ACTION.  443 

jects,  the  same  shall  be  transferred  by  hill  of  sale,  containing  a  recital  of  the 
certificate  of  registry  of  such  ship,  or  the  principal  contents  tliereof,  otherwise 
such  transfer  shall  not  he  valid  or  effectual  for  any  purpose  wliatcver,  either  in 
law  or  in  equity;  hut  no  bill  of  sale  shall  be  deemed  void  by  reason  of  any 
error  in  such  recital,  provided  the  identity  of  the  sliip  intended  in  the  recital 
be  effectually  proved  thereby,  "(c) 

And,  therefore,  a  certificate  of  registry  affords  conclusive  proof  that  a  person 
not  named  therein,  was  not  at  that  time  owner.      Mamh  v.  Jioblnson.  (r/) 

And  in  the  case  of  Camden  v.  Anderson,  (e)  where  two  partners  purcliased 
a  ship  under  a  regular  bill  of  sale,  and  were  registered  accordingly,  and  they 
afterwards  took  in  two  =*other  partners,  who  paid  their  respective  p  i^Qfio  -i 
shares  in  the  ship,  but  there  was  no  transfer  to  them  under  the  L  J 

direction  of  the  statute,  («)  it  was  held  that  the  four  partners  had  not  an  insu- 
rable interest  in  the  freight,  for  as  the  right  of  freight  resulted  from  the  right  of 
ownership,  these  four  partners  had  not  shewn  in  themselves  jointly  (as  laid  in 
the  declaration)  either  a  legal  or  equitable  tide  in  the  ship. 

When,  therefore,  the  interest  in  the  ship  is  claimed  by  a  bill  of  sale  or  other 
writing,  and  possession  and  acts  of  ownersliip  are  not  relied  upon  by  the 
assured,  he  must  give  in  evidence  the  proper  documents  required  by  the  statute 
in  order  to  support  his  case,  (i) 

In  the  case  of  Senat  v.  Porter,  (c)  where  the  agent  or  broker  of  the  assured, 
having  shown  to  the  underwriter  the  protest  of  the  captain,  stating  the  circum- 
stances of  the  loss  of  the  ship  insured,  and  demanding  payment,  it  was  held 
by  the  Court,  on  a  motion  for  a  new  trial,  that  the  delivery  of  this  paper  to 
the  defendant  did  not  entide  him  to  read  it,  as  evidence  of  the  facts  contained 
in  it ;  diough,  had  the  captain  been  called  to  give  a  different  account  of  the  loss 
from  that  contained  in  the  protest,  it  might  have  been  produced  to  show  that  he 
was  not  worthy  of  credit;  but  it  could  not  be  read  on  the  part  of  the  defendant 
to  prove  any  fact  in  the  case. 

So  also  in  Wright  v.  Barnard,  [d)  in  an  action  on  a  policy  on  the  ship,  a 
condemnation  of  the  vessel  by  a  Court  of  Vice  Admiralty  abroad  for  insuffi- 
ciency, after  a  survey  had  upon  oath,  was  offered  in  evidence  by  the  under- 
writers, to  prove  that  there  were  defects  in  the  ship,  from  which  want  of 
seaworthiness  at  a  prior  time  was  meant  to  be  inferred ;  but  Lord  Kenyon 
rejected  the  sentence  as  evidence  of  the  facts  ^contained  in  it,  though  p  «oaq  -i 
he  admitted  it  to  be  read,  to  prove  the  mere  fact  of  a  condemnation  L  J 

having  taken  place ;  and  this,  notwithstanding  an  order  of  the  Court  of  Exche- 
quer, directing  that  it  should  be  admitted  in  evidence. 

A  man  having  purchased  goods  beyond  sea,  in  order  to  prove  his  property 
in  the  cargo,  in  an  action  upon  a  policy  of  insurance,  produced  a  bill  of  parcels 
of  one  Gardiner,  at  Petersburgh,  with  his  receipt  to  it,  and  proved  his  hand. 
The  defendant  objected  that  this  was  no  evidence  against  the  insurers;  but  the 
Lord  Chief  Justice  allowed  it.     Russel  v.  Boheme.  [a) 

If  the  policy  is  on  freight,  the  assured  must  show  either  that  the  goods  were 
on  board,  or  ready  to  be  put  on  board,  under  a  contract  capable  of  being  enforced, 

(c)  Sect.  31.  Upon  the  construction  of  this  section,  see  Hunter  v.  Parker,  7  M.  &  W. 
322.  {d)  4  Esp.  98. 

(e)  5  T.  R.  709.  (a)  26  Geo.  3,  c.  60. 

(6)  See  the  40th  sect,  of  3  &  4  Wm.  4,  c.  55,  and  see  Teed  v.  Martin,  4  Camp.  90, 
as  to  secondary  evidence,  and  see  Woodward  v.  Larking,  3  Esp.  286. 

(c)  7  T.  R.  158.  The  same  doctrine  had  been  previously  held  by  Lord  Kenyon  in 
Christian  v.  Combe,  2  Esp.  489. 

(fl')  Sittings  after  Mich.  1798,  at  Guildhall,  Park  Ins.  863. 

(a)   2  Stra.  1127. 


444  OF    THE    PROCEEDINGS    IN    THE    ACTION. 

or  that  there  was  an  inception  of  the  right  by  means  of  a  charter-party.  And 
the  assured  cannot  recover  for  the  whole  freight  under  even  a  valued  policy 
where  only  part  have  been  put  on  board,  and  no  inchoate  right  to  freight  had 
arisen  under  a  charter-party  or  other  contract,  (b) 

It  i?,  in  the  last  place,  incumbent  on  the  plaintiff  to  prove  that  a  loss  has 
happened,  and  that  by  the  very  means  stated  in  the  declaration.  It  is  abso- 
lutely necessary  that  this  rule  should  be  stricdy  adhered  to  ;  for  otherwise  the 
insurers  would  come  into  Court  prepared  to  defend  themselves  against  one 
charge,  and  one  species  of  loss ;  and  they  would  then  be  obliged  to  resist  a 
demand  upon  a  quite  different  ground. 

This  appeared  clearly  in  the  case  of  Gregson  v.  Gilbert,  (c)  and  also  in  the 
case  of  Kulen  Kemp  v.  Vigne,  (cl)  which  was  an  action  on  a  policy  of  insu- 
rance, which  came  on  to  be  tried  before  Mr.  Justice  Buller,  who  nonsuited 
the  plaintiff.  Upon  a  motion  to  set  aside  that  nonsuit,  the  following  report  was 
made  by  the  learned  Judge.  The  insurance  was  upon  goods  on  board  the  ship 
r  *sin  ~\  ^'"^'^''^A  at  and  from  Falmouth  to  Maraeilles,  ^'warranted  a 
L  J  Danish  ship,  and  on  the  policy  was  this  memorandum; — "The 

following  insurance  is  declared  to  be  on  money  expended  for  reclaiming  the 
ship  and  cargo  valued  at  the  sum  which  shall  be  declared  hereafter.  The  loss 
to  be  paid,  in  case  the  ship  does  not  arrive  at  Marseilles,  and  without  further 
proof  of  interest  than  this  policy;  warranted  free  from  all  average,  and  without 
the  benefit  of  salvage."  It  appeared  that  the  plaintiffs  were  proprietors  of  the 
cargo,  but  not  of  the  ship.  That  the  ship  originally  sailed  with  the  cargo  on 
board  from  Riga  to  Marseilles,  and  that  insurance  had  been  effected  at  Bre- 
men upon  the  cargo  for  that  voyage,  in  the  course  of  which  she  was  taken  and 
brouglit  into  Falmouth  by  an  English  privateer.  That  a  sentence  of  condem- 
nation had  been  there  obtained,  which  was  afterwards  reversed,  upon  the  prize 
having  been  proved  to  be  a  neutral  ship,  but  the  expenses  of  procuring  that 
reversal  were  ordered  by  the  Admiralty  Court  to  be  a  charge  upon  the  cargo. 
The  plaintiff's  agents  accordingly  paid  tlie  sum  of  1,031/.  14s.  for  the  expenses 
of  reclaiming  the  ship  and  cargo ;  and  immediately  procured  the  policy  in 
question  to  be  effected  in  January,  1781,  according  to  the  purport  of  the 
memorandum.  In  the  February  following,  the  ship  set  sail  from  Falmouth, 
with  the  original  cargo  on  board,  in  the  prosecution  of  her  voyage  to  Alar- 
seillcs,  but,  on  the  26th  of  the  same  mondi,  before  her  arrival  there,  was  cap- 
tured by  a  Spanish  ship,  and  carried  into  Ceuta,  in  Spain,  where  she  was 
again  condemned.  An  appeal  was  brought  in  the  Superior  Court  at  Madrid, 
which  promising  to  be  of  long  continuance,  the  cargo,  which  was  of  a  perish- 
able nature,  was  ordered  to  be  sold,  and  the  proceeds  to  be  brought  into  Court 
to  wait  the  event  of  the  suit.  In  May,  1783,  the  vessel  was  restored  by  sen- 
tence of  the  Court,  and  the  surplus  of  the  proceeds  which  arose  from  the  sale 
of  the  cargo  was  paid  to  the  owners,  deducting  the  expenses  incurred  in  Spain 
in  prosecuting  the  appeal.  After  all  the  charges  paid,  there  only  remained 
twenty-six  rix  dollars.  As  soon  as  the  ship  was  liberated,  she  sailed  from 
r  *Sll  1  ^^"^^  to  Malaga,  in  order  to  refit,  and  having  there  made  *the 
L  -^  necessary  repairs,  set  sail  for  Bremen,  and  in  that  voyage  was 

lost.  The  insurance  made  upon  the  cargo  at  Bremen  had  been  paid.  The 
declaration  averred  that,  "whilst  the  ship  was  proceeding  in  her  said  voyage 
from  Falmouth  to  Marseilles,  and  before  she  could  arrive  at  Marseilles,  she 
was  captured  by  the  Spaniards,  and  thereby  the  said  ship,  and  also  the  goods 

(6)  See  Devaux  v.  I'Anson,  7  Scott,  507;  5  B.  N.  C.  519,  and  ante,  p.  173. 
(c)  B.  B.  East.  T.  23  Geo.  3.  Park  Ins.  138,  ante,  p.  272. 
(rf)   1  T.  R.  304. 


OF    THE    PROCEEDINGS    IN    THE    ACTION.  445 

and  mercliandises  on  board  her,  were  totally  lost  to  the  plaintifTs."  At  the 
trial,  it  was  objected,  on  the  part  of  the  dercinlant,  1st,  that  this  was  not  an 
insurable  interest;  and  2adly,  that  tlie  plaintiiFs  could  not  recover  upon  the 
policy  in  this  form  of  declaring,  for  they  stated  the  loss  to  have  hap])ened  by 
capture ;  whereas,  though  the  vessel  was  captured,  yet,  having  been  afterwards 
restored,  she  might  have  reached  her  destined  port,  notwithstanding  the  cap- 
ture, in  which  case  die  underwriters  would  have  been  discharged  by  tlie  terms 
of  the  memorandum.  I  was  of  that  opinion,  and  upon  the  last  ground  I  non- 
suited the  plaintiffs." 

This  case  was  very  fully  argued  both  upon  the  merits  and  the  formal  objection, 
after  which  all  the  Judges  spoke  upon  the  question. 

Lord  Mannfidd. — ''A  loss  accrued  upon  the  cargo  in  tlie  voyage,  the  under- 
writer is  sued,  and  the  loss  is  averred  in  t!ie  declaration  to  be  by  capture.  The 
fact  of  the  case  is,  that  the  ship  was  taken  by  a  Spanish  privateer,  but  was 
afterwards  restored,  and  in  a  condition  to  pursue  Uie  voyage,  and  was  after- 
wards lost  in  another  voyage." 

Mr.  Justice  IVilles, — "-Upon  this  case  it  is  clear  that  the  plaintiffs  cannot 
recover.  In  the  first  place  there  was  certainly  a  deviation,  for  the  ship  set  sail 
for  Malas^a,  instead  of  proceeding  to  Marseilles.  Secondly,  the  plaintiff  has 
declared  for  a  loss  by  capture;  but  after  the  capture,  the  policy  niiglit  slill  have 
been  complied  with  by  the  ship's  going  to  Marseilles,  and  therefore  the  loss 
cannot  be  said  to  have  happened  by  that  circumstance." 

But  where,  in  the  case  of  Cary  v.  Kiny,  [a)  a  loss  is  averred  p  ^^.  -, 
*to  be  by  perils  of  the  sea,  and  some  of  the  goods  insured  are  L  J 

spoiled  and  otiiers  saved,  it  is  allowable  to  give  the  expense  of  the  salvage  in 
evidence  upon  such  an  averment,  because  it  is  a  consequence  of  the  accident 
laid  in  the  declaration. 

In  an  action  on  a  policy  of  insurance  for  insuring  goods  on  board  the  ship 
^.,  the  plaintiff  declares  that  the  ship  sprung  a  leak,  and  sunk  in  the  river, 
whereby  the  goods  were  spoiled.  The  evidence  was,  that  many  of  the  goods 
were  spoiled,  but  some  were  saved;  and  the  question  was, — Whether  the 
plaintiff  might  give  in  evidence  the  expense  of  salvage,  that  not  being  particu- 
larly laid  as  a  breach  of  the  policy  in  the  declaration.^ 

Lord  Hardivicke,  C.  J.— "I  think  they  may  give  it  in  evidence,  for  the 
insurance  is  against  all  accidents.  The  accident  laid  in  this  declaration  is,  that 
the  ship  sunk  in  the  river  :  it  goes  on  and  says  that,  by  reason  thereof,  the 
goods  were  spoiled;  that  is  the  only  special  damage  laid,  yet  it  is  but  the  com- 
mon case  of  a  declaration  that  lays  special  damage,  where  the  plaintifT  may 
give  evidence  of  any  damage  that  is  within  his  cause  of  action  as  laid.  And 
though  it  was  objected  that  such  a  breach  of  the  policy  should  be  laid  as  the 
insurer  may  have  notice  to  defend  it,  it  is  so  in  this  case,  for  they  have  laid  die 
accident,  which  is  sufficient  notice  because  it  must  necessarily  follow  that  some 
damage  did  happen. 

(fl)  Cas.  temp.  Hard.  B.  B.  304.  But  salvage  payable  under  a  decree  of  a  Court  of 
Admiralty  must  be  proved  by  evidence  of  the  judgment  of  the  Court.  Thelluson  v.  fcShed- 
don,  2  N.  R.  229. 


446  ADDENDA. 


ADDENDA. 


[    *821*   ]       *Case  of  Redmond  v.  Smith  and  Another,  (a) 

This  was  an  action  of  assumpsit  on  a  policy  of  insurance.  The  declaration 
stated  that  the  plaintiff,  by  certain  persons  called  or  known  by  the  name,  style, 
and  firm  of  H.  &  J.  Johnston  &  Co.,  the  plaintiff's  agents  in  that  behalf, 
theretofore,  to  wit,  on  the  2nd  of  July,  1842,  caused  to  be  made  a  certain 
policy  of  insurance  purporting  thereby  and  containing  therein  that  the  said 
II.  &  J.  Johnston  &  Co.,  as  well  in  their  own  name  as  for  and  in  the  name  or 
names  of  all  and  every  person  or  persons  to  whom  the  same  did,  might,  or 
should  appertain,  in  part  or  in  all,  did  make  assurance  and  cause  themselves 
and  them  and  every  of  them  to  be  assured  with  and  by  the  defendants,  lost  or 
not  lost,  for  the  space  of  twelve  calendar  months,  commencing  on  the  1st  of 
July,  1842,  and  ending  on  the  30th  of  June,  1843,  both  days  inclusive,  in 
port  and  at  sea,  in  docks  and  on  ways,  at  all  times,  in  all  places,  and  in  all 
services,  warranted  to  be  employed  in  the  coasting  trade  of  the  united  kingdom, 
with  leave  to  call  at  any  ports  or  places  for  any  purposes,  and  to  tow  vessels, 
upon  the  body,  tackle,  apparel,  ordnance,  munition,  artillery,  boat,  and  other 
furniture  of  and  in  the  good  ship   or   vessel  called   the  Brigand  (steamer,) 

whereof  was  master  for  that  present  voyage ,  or  whosoever  should  go  for 

master  in  the  said  ship,  or  by  whatsoever  other  name  or  names  tbe  same  ship, 
or  the  master  thereof,  was  or  should  be  named  or  called,  beginning  the  adven- 
ture upon  the  said  ship,  body,  tackle,  apparel,  ordnance,  munition,  artillery, 
boat,  and  other  furniture  of  and  in  the  said  good  ship  or  vessel  as  above  j  and 
that  it  should  be  lawful  for  the  said  ship,  &c.  to  proceed  and  sail  to  and  touch 
and  stay  at  any  ports  or  places  whatsoever  in  the  course  of  the  said  voyage 
for  all  necessary  purposes,  without  prejudice  to  that  assurance;  the  said  ship, 
r  *ao9*  ~i  <^^*'  ^o"^  ^^  much  as  concerned  *the  assured,  by  agreement  made 
•-  -I  between  the  assured  and  the  said  defendants  in  that  policy,  were 

and  should  be  rated  and  valued  in  manner  following,  that  is  to  say,  hull  and 
materials  should  be  valued  at  7500/.,  machinery  should  be  valued  at  7500/.  ; 
to  pay  the  average  on  each  as  if  separately  insured ;  touching  the  adventures 
and  perils  which  the  defendants  were  contented  to  bear  and  did  take  upon  them 
in  that  voyage,  they  were,  of  the  seas,  men  of  war,  fire,  enemies,  pirates, 
rovers,  thieves,  jettisons,  letters  of  mart  and  countermart,  surprisals,  takings 
at  sea,  arrests,  restraints,  and  detainments  of  all  king's,  princes,  and  people  of 
what  nation,  condition,  or  quality  soever,  barratry  of  the  master  and  mariners, 
and  of  all  other  perils,  losses,  misfortunes,  that  had  or  should  come  to  the  hurt, 
detriment,  or  damage  of  the  said  ship,  &c.,  or  any  part  thereof;  and  that,  in 
case  of  any  loss  or  misfortune,  it  should  be  lawful  to  the  assured,  their  factors, 
servants,  and  assigns,  to  sue,  labour,  and  travail  for,  in,  and  about  the  defence, 
safe  guard,  and  recovery  of  the  said  ship,  &c. ,  or  any  part  thereof,  without 
prejudice  to  that  assurance,  to  the  charges  whereof  the  said  defendants  would 

(a)  8  Scott's  N.  R.  250. 


ADDENDA.  447 

contribute  according  to  the  rate  and  quantity  of  the  sum  therein  assured ;  and 
the  defendants  were  contented  and  did  thereby  promise  and  bind  themselves  to 
the  assured,  their  executors,  administrators,  and  assigns,  for  the  true  perform- 
ance of  the  premises,  confessing  themselves  paid  the  consideration  due  unto 
them  for  that  assurance  by  the  assured  at  and  after  the  rale  of  5/.  5.s.  per  cent., 
to  return  8,9.  4d.  per  cent,  for  each  uncommenced  month,  and  4.s'.  per  cent,  for 
every  fifteen  days  the  vessel  might  be  laid  up  unemployed,  notice  being  given ; 
the  risk  of  fire  to  be  borne  during  such  time  by  the  underwriters  ;  the  said  ship 
was  warranted  free  of  average  under  3/.  per  cent.,  unless  general  or  the  ship 
should  be  stranded :  and  the  defendants  by  the  said  policy  undertook  the  said 
insurance  for  the  sum  of  3000/.  sterling  :  and  by  a  certain  memorandum  written 
in  the  margin  of  the  said  policy,  it  was  declared  that  any  claim  under  the  said 
policy,  would  be  paid  in  London  within  ten  days  after  adjustment,  p  #Qoq*  ~i 
*Averment  that  the  said  policy  of  insurance  was  so  made  by  the  •-  -' 

said  H.  &  J.  Johnston  &  Co.  as  aforesaid,  as  the  agents  for  him  the  plaintiff 
and  on  his  account,  and  for  his  the  plaintiff's  use  and  benefit;  and  that  tlie  said 
H.  &;  J.  Johnston  &  Co.  did  receive  the  order  for  and  effect  the  said  policy 
of  insurance  as  such  agents  as  aforesaid,  of  all  which  premises  the  defendants 
afterwards,  to  wit,  on  the  said  2nd  o(  July,  1842,  had  notice;  and  thereupon, 
on  the  day  and  year  last  aforesaid,  in  consideration  that  the  plaintiff,  at  the 
request  of  the  defendants,  had  then  paid  to  the^  defendants  a  certain  sum  of 
money,  to  wit,  the  sum  of  157/.  10s.,  as  a  premium  or  reward  for  the  insu- 
rance of  3000/.  of  and  upon  the  premises  in  the  said  policy  of  insurance  men- 
tioned, and  had  then  promised  the  defendants  to  perform  and  fulfil  all  things 
in  the  said  policy  of  insurance  contained  on  the  part  and  behalf  of  the  insured 
to  be  performed  and  fulfilled,  the  defendants  then  promised  the  plaintiff  that 
they  the  defendants  would  become  and  be  insurers  to  the  plaintiff  of  the  sum 
of  3000/.  upon  the  said  premises  in  the  said  policy  of  insurance  mentioned, 
and  would  perform  and  fulfil  all  things  in  the  said  policy  of  insurance  men- 
tioned on  their  part  and  behalf  as  such  insurers  of  the  said  sum  of  3000/.  to 
be  performed,  fulfilled,  and  observed  :  averment  that  the  defendants  then  became 
and  were  insurers  to  the  plaintiff,  and  then  duly  subscribed  the  said  policy  of 
insurance  as  such  insurers  of  the  said  sum  of  3000/.  sterling  upon  the  premises 
in  the  said  policy  in  that  behalf  mentioned ;  that  he  the  plaintiff,  at  the  time 
of  the  making  of  the  said  policy  of  insurance  was,  from  thence  continually 
afterwards  until  and  at  the  time  of  the  loss  thereinafter  mentioned,  interested 
in  the  said  ship  in  the  said  policy  of  insurance  mentioned  to  a  large  value  and 
amount,  to  wit,  to  the  value  and  amount  of  all  the  moneys  by  him  ever  insured 
or  caused  to  be  insured  thereon ;  that  theretofore,  and  after  the  making  of  the 
said  insurance,  and  whilst  the  said  ship  or  vessel  was  employed  in  the  coasting 
trade  of  the  United  Kingdom,  and  after  the  said  1st  of  July,  1842,  in  the  said 
policy  of  insurance  *mentioned,  and  before  the  30th  of  June,  r-  *o24*  n 
1843,  in  the  said  policy  of  insurance  also  mentioned,  to  wit,  on  L  -^ 

the  10th  of  October,  1842,  the  said  ship  or  vessel  departed  and  set  sail  from 
the  port  of  Liverpool  on  a  voyage  to  London;  that  the  said  ship  in  the  said 
policy  of  insurance  mentioned,  whilst  she  was  proceeding  on  her  said  voyage, 
and  before  her  arrival  at  London  aforesaid,  and  whilst  she  was  so  employed 
in  the  coasting  trade  of  the  United  Kingdom  as  aforesaid,  to  wit,  on  the  12th 
of  October,  1842,  upon  the  high  seas,  struck  against  certain  rocks,  and  did 
thereby  then  and  there  founder  and  sink  in  the  seas  aforesaid,  and  the  same 
ship  or  vessel,  with  her  tackle,  apparel,  ordnance,  munition,  artillery,  machi- 
nery, and  other  furniture,  were  then  totally  lost,  destroyed,  and  sunk  in  the 
sea  aforesaid,  of  all  which  said  several  premises  the  defendants  afterwards,  to 
wit,  on  the  day  and  year  last  aforesaid,  had  notice,  and  were  then  requested  by 
Vol.  VII.— E  2 


448  ADDENDA. 

the  plaintiff  to  pay  him  the  said  sum  of  3000/.  so  by  him  insured  as  aforesaid, 
and  which  said  sum  of  3000/.  they  the  defendants  then  ought  to  liave  paid 
according  to  the  form  and  effect  of  the  said  pohcy  of  insurance,  and  their  said 
promise  "and  undertaking  so  by  them  made  as  aforesaid.  There  was  also  a 
count  for  3000/.  money  had  and  received  by  the  defendants  for  the  use  of  the 
plaintiff,  and  the  like  sum  for  money  found  to  be  due  from  the  defendants  to 
the  plaintiff  on  an  account  stated  between  them. 

The  defendants  pleaded — secondly,  as  to  the  first  count,  that  the  said  policy 
of  insurance  was  not  made  by  the  said  H.  &  J.  Johnston  &  Co.  as  agents  for 
the  plaintiff,  or  on  his  account,  or  for  his  the  plaintiff's  use  and  benefit;  and 
that  the  said  H.  &  J.  Johnston  &  Co.  did  not  receive  the  order  for  or  effect  the 
said  policy  of  insurance  as  such  agents  as  aforesaid,  as  in  the  said  first  count 

was  alleged. 

Sixthly,  as  to  the  first  count,  that  the  said  policy  of  assurance  m  that  count 
mentioned  was  made,  and  that  the  said  loss  of  the  said  ship  or  vessel  happened,, 
after  the  passing  of  a  certain  act  of  Parliament  made  and  passed  in  the  session 
„    -,  of  Parliament  held  in  the  5th  and  6th  years  of  the  reign  of  his 
L   ^'^^^"^    J  «late  Majesty,  King  William  the  4th,  intituled,  "An  Act  to  amend 
and  consolidate  the  laws  relating  to  merchant  seamen  of  the  United  Kingdom, 
and  for  forming  and  maintaining  a  register  of  all  the  men  engaged  in  that  ser- 
vice ;"  that  the  said  ship  or  vessel  was,  at  the  several  times  of  sailing  on  the 
said  voyage,  and  of  the  said  loss  in  the  declaration  mentioned,  respectively,  a 
British  registered  ship,  of  the  burden  of  eighty  tons  and  upwards,  and  that 
the  crew  of  the  said  vessel  then  consisted  of  divers,  to  wit,  twenty  seamen, 
and  twenty  other  persons,  (not  being  apprentices)  and  of  one  master,  to  wit, 
one  Robert  Morris  Hunt ;  that  there  was  not,  at  the  time  of  the  saiUng  of  the 
said  ship  or  vessel  on  the  said  voyage  in  the  declaration  mentioned,  or  at  any 
other  time  before  or  after,  any  agreement  in  writing  with  the  said  master  and 
the  said  seamen  and  other  persons,  or  any  or  either  of  them,  signed  by  the 
said  master  and  the  said  seamen  and  other  persons,  or  any  or  either  of  them, 
specifying  what  monthly  or  other  wages  each  of  such  seamen  and  other  per- 
sons, being  part  of  the  said  crew,  or  any  or  either  of  them,  was  to  be  paid, 
the  capacity  in  which  he  was  to  act,  or  the  nature  of  the  voyage  in  which  the 
said  ship  was  intended  to  be  employed;  contrary  to  the  statute  in  that  behalf; 
wherefore  the  defendants  said  that  the  said  voyage  was  wholly  illegal :  verifi- 
cation. 

The  plaintiff  demurred  specially  to  the  second  plea,  assigumg  for  cause  that 
the  said  second  plea  amounted  to  the  plea  of  non  assumpsit;  that  the  matters 
of  fact  therein  traversed  were  included  in  and  might  be  given  in  evidence  under 
the  issue  joined  on  non  assumpsit;  that  the  pleading  in  the  manner  as  pleaded 
by  the  defendants  in  the  said  second  plea  tended  to  unnecessary  prolixity  and 
length ;  that  the  second  plea  contained  a  negative  pregnant,  inasmuch  as  it  was 
pregnant  with  doubt  whether  the  defendants  by  their  said  second  plea  meant  to 
say'' that  the  policy  was  not  made  by  H.  &  J.  Johnston  &  Co.  as  the  agents 
for  the  plaintiff,  or  on  his  account,  or  for  his  the  plaintiff's  use  and  benefit; 
^  .  ^  -,  that  the  plea  was  multifarious  and  double,  and  traversed  several 
L  "^826*  ]  *jj,j^tters  of  fact;  and  that  it  was  in  other  respects  informal,  inarti- 
ficial, uncertain,  and  insufficient,  &c. 

The  plaintiff  also  demurred  generally  to  the  sixth  plea.     The  defendant 
joined  in  demurrer,  (a) 


(a)  The  matters  intended  to  be  argued  on  the  demurrer  to  the  sixth  plea  were,  that  the 
plea  was  defective  in  substance,  inasmuch  as  it  alleged  no  facts  which  would  constitute  such 


ADDENDA.  449 

TiNDAL,  C.  J. — The  defendants  in  this  case  have  pleaded  two  pleas  to  which 
the  plaintifF  has  demurred,  viz :  the  second  and  the  sixth.     The  second  plea 
puts  in  issue  the  allegation  in  the  declaration  "that  tlie  said  policy  of  insurance 
was  so  made  by  the  said  H.  &  J.  Johnston  Sc  Co.  as  the  agents  for  him  the 
plaintiff"  and  on  his  account,  and  for  his  the  plaintiff''s  use  and  benefit,  and  that 
the  said  H.  &  J.  Johnston  &  Co.  did  receive  the  order  for  and  effect  the  said 
policy  of  insurance  as  such  agents  as  aforesaid."     The  plaintiff"  has  demurred 
specially  to  this  plea,  assigning,  among  other  causes,  that  it  amounts  to  the  plea 
of  non  assumpsit^  and  that  the  matters  of  fact  therein  traversed  are  included 
in  and  may  be  given  in  evidence  under  the  issue  joined  on  non  assumpsit;  and 
such  in  point  of  law  is,  I  think,  the  effect  of  this  traverse.      No  doubt  the  plea 
of  7ion  assumpsit  puts  in  issue,  not  only  the  promise  alleged  in  the  declaration, 
but  also  the  consideration  for  such  promise.     Let  us  see,  then,  what  is  the  con- 
sideration here,  and  whether  non  assumpsit  does  not  put  in  issue  virtually  the 
same  facts  that  are  placed  specially  upon  the  record  by  the  second  plea.      The 
declaration  alleges  that  the  plaintiff",  "by  certain  persons  called  or  known  by 
the  name,  style,  and  firm  of  H.  &  J.  Johnston  &l  Co.,  the  plaintifT's  agents  in 
that  behalf,  caused  to  be  made  a  certain  policy  of  *insurance;"  ^   ^anf^ 
and  "that  the  said  policy  of  insurance  was  so  made  by  the  said  L  J 

H.  &  J.  Johnston  &  Co.  as  the  agents  for  him  the  plaintiff"  and  on  his  account, 
and  for  his  the  plaintiff''s  use  and  benefit,  and  that  the  said  H.  &l  J.  Johnston 
&  Co.  did  receive  the  order  for  and  effect  the  said  policy  of  insurance  as  such 
agents  as  aforesaid."     It  appears  on  the  face  of  the  declaration,  therefore,  that 
the  policy  was  eff'ected  in  the  name  of  H.  &;  J.  Johnston  &  Co.  as  agents  for 
tlie  plaintiff',  and,  as  alleged  on  the  policy,  as  agents  for  the  party  interested : 
and  the  consideration  is  thus  alleged: — "In  consideration  that  the  plaintifff",  at 
the  request  of  the  defendants,  had  then  paid  to  the  defendants  a  certain  sum  of 
money,  to  wit,  the  sum  of  157/.  10*.,  as  a  premium  or  reward  for  the  insu- 
rance of  3000/.  of  and  upon  the  premises  in  the  said  policy  of  insurance  men- 
tioned, and  had  then  promised  the  defendants  to  perform  and  fulfil  all  things  in 
the  said  policy  of  insurance  contained  on  the  part  and  behalf  of  the  insured  to 
be  performed  and  fulfilled,  the  defendants  then  promised  the  plaintifF  that  they 
the  defendants  would  become  and  be  insurers  to  the  plaintiff  of  the  sum  of 
3000/.  upon  the  said  premises  in  the  said  policy  of  insurance  mentioned,  and 
would  perform  and  fulfil  all  things  in  the  said  policy  of  insurance  mentioned 
on  their  part  and  behalf  as  such  insurers  of  the  said  sum  of  3000/.  to  be  per- 
formed, fulfilled,  and  observed."     Under  non  assumpsit  it  would  be  incumbent 
on  the  plaintiff  to  produce  the  policy  described  in  the  declaration,  and  to  prove 
that  H.  &;  J.  Johnston  &  Co.  made  the  assurance  as  his  agents.     Therefore, 
it  seems  to  me  that  precisely  the  same  evidence  must  be  given  under  non 
assumpsit  as  would  be  requisite  to  sustain  the  second  plea.     And,  when  it  is 
said  that  by  the  form  of  this  traverse  it  would  be  necessary  for  the  plaintiflf  to 
shew  that  H.  &  J.  Johnston  &  Co.  were  his  agents  for  that  purpose  at  the  very 
time  of  eff"ecting  the  insurance,  whereas,  if  it  went  to  the  jury  upon  non 
assumpsit  only,  a  subsequent  acknowledgment  and  ratification  would  suffice ; 
I  must  say  I  am  not  prepared  to  admit  any  such  distinction.     If  a  subsequent 

illegality  in  the  voyage  as  to  render  the  policy  void,  or  which  afforded  any  answer  to  the 
action ;  that  the  plea  was  further  defective  in  substance,  inasmuch  as  by  the  5  &  6  Wm.  4, 
c.  19,  the  agreement  required  to  be  entered  into  with  seamen  before  they  were  carried  to 
sea  on  any  voyage,  was  to  be  entered  into  with  them  by  the  master  of  any  ship  or  vessel, 
and  the  penalty  for  default  was  inflicted  on  the  master;  and  the  owner  of  any  ship  or  ves- 
sel, not  having  knowledge  of  the  master's  defarllt,  could  not  be  prejudiced,  so  as  to  prevent 
his  recovering  on  a  policy  effected  on  such  ship. 


450  ADDENDA. 

r  *e«?ft*  "1  ratification  would  be  enough  in  *the  one  case,  I  do  not  see  why  it 
L    '°^       J  should  not  in  the  other.     On  the  part  of  the  plaintiff  was  cited  the 
case  of  Sutherland  v.  Pratt,  (11  M.  &.  W.  296)  where  a  plea  to  a  declaration 
in  assumpsit  on  a  policy  of  insurance,  that  the  policy  was  not  caused  to  be 
made  by  or  on  behalf  of  the  plaintiff  was  held  bad  on  special  demurrer,  as 
amounting  to  non  assumpsit.     I  am  unable  to  distinguish  that  case  upon  any 
solid  and  substantial  ground  from  the  present.     As  far,  therefore,  as  the  second 
plea  is  concerned,  the  demurrer  must  prevail.     By  the  sixth  plea  the  defendants 
seek  to  set  up  as  an  answer  to  the  action,  that  the  voyage  in  respect  of  which  the 
policy  declared  upon  was  made  was  an  illegal  voyage,  by  reason  of  the  non-com- 
pliance with  the  directions  of  the  statute  5  &  6  Wm.  4,  c.  19.     There  can  be  no 
doubt  but  that  a  policy  effected  on  a  ship  upon  the  prosecution  of  an  illegal  voyage 
is  void,  and  cannot  be  enforced  in  a  Court  of  Law.     It  would  be  singular,  indeed, 
if  the  main  contract  should  be  void  and  the  collateral  contract  valid.     It  may, 
therefore,  be  laid  down  as  a  general  rule,  that,  where  the  voyage  itself  is  ille- 
gal, an  assurance  for  the  voyage  is  also  illegal.     There  are  many  cases  where 
that  has  been  held  to  be  undoubted  law.     Thus,  in  the  time  of  the  last  war, 
policies  effected  on  vessels  sailing  in  contravention  of  the  Convoy  Acts,  38 
Geo.  3,  c.  76,  and  43  Geo.  3,  c.  57,  where  held  void.     So,  where  the  voy- 
age was  in  breach  of  the  Navigation  Act,  6  Geo.  4,  c.  109,  or  of  the  acts 
regulating  the  East  India  Company  or  the  South  Sea  Compariy — acts  which 
had  in  view  the  general  policy  of  the  realm,  and  the  security  and  encourage- 
ment of  navigation.     But  it  appears  to  me  that  the  provisions  of  the  statute  5 
&  6  Wm.  4,  c.  19,  were  framed  for  a  collateral  purpose  only :  it  was  intended 
to  give  to  seamen  in  the  merchant- service  a  readier  mode  of  ascertaining  and 
enforcing  their  rights,  and  to  prevent  them  from  having  imposed  upon  them 
contracts  into  which  they  had  never  in  fact  entered ;  and  therefore  it  enacts,  in 
s.  1,  "that  it  shall  not  be  lawful  for  any  master  of  any  ship  or  vessel  belong- 
r   *ft9q*   1  ^"§  ^°  ^^^y  subject  of  his  Majesty  of  this  *United  Kingdom  trading 
L  J  to  parts  beyond  the  seas,  or  of  any  British  registered  ship  of  the 

burthen  of  eighty  tons  or  upwards  employed  in  any  of  the  fisheries  of  the 
United  Kingdom,  or  in  trading  coastwise  or  otherwise,  to  carry  to  sea  on  any 
voyage,  either  from  this  kingdom  or  from  any  other  place,  any  seaman  or  other 
person  as  one  of  his  crew  or  complement,  (apprentices  excepted)  without  first 
entering  into  an  agreement  in  writing  with  every  such  seaman,  specifying  what 
monthly  or  other  wages  each  such  seaman  is  to  be  paid,  the  capacity  in  which 
he  is  to  act,  and  the  nature  of  the  voyage  in  which  the  ship  is  intended  to  be 
employed,  so  that  the  seaman  may  have  some  means  of  judging  of  the  proba- 
ble period  for  which  he  is  likely  to  be  engaged ;  and  the  said  agreement  shall 
contain  the  day  of  the  month  and  year  in  which  the  same  shall  be  made,  and 
shall  be  signed  by  the  master  in  the  first  instance,  and  by  the  seamen  respec- 
tively at  the  port  or  place  at  which  such  seamen  shall  be  respectively  shipped : 
and  the  master  shall  cause  the  same  to  be,  by  or  in  the  presence  of  the  party 
who  is  to  attest  their  respective  signatures  thereto,  truly  and  distinctly  read  over 
to  every  such  seaman  before  he  shall  be  required  to  sign  the  same,  in  order  that 
he  may  be  enabled  to  understand  the  purport  and  meaning  of  the  engagement 
he  enters  into  and  the  terms  to  which  he  is  bound."  And  then  the  act  goes 
on,  in  section  4,  to  provide,  that,  if  any  master  of  any  such  ship  as  aforesaid 
shall  carry  out  to  sea  aoy  seaman  (apprentices  excepted)  without  having  first 
entered  into  such  agreement  as  is  thereby  required,  he  shall  for  every  such 
offence  forfeit  and  pay  the  sum  of  10/.  for  or  in  respect  of  each  and  every  such 
seaman  he  shall  so  carry  out  contrary  to  this  act;  and,  if  any  master  shall 
neglect  to  cause  the  agreement  to  be  distinctly  read  over  to  each  such  seaman, 
as  by  this  act  he  is  enjoined,  he  shall  for  every  such  neglect  forfeit  and  pay  the 


ADDENDA.  45 1 


sum  of  5/. ;  and,  if  any  master  shall  neglect  to  deposit  with  the  collector  or 
comptroller  of  the  customs  a  copy  of  the  agreement  thereby  required  to  be 
made  and  deposited  as  aforesaid,  [s.  3]  or  shall  wilfully  deposit  a  false  copy 
of  any  *such  agreement,  he  shall  for  every  such  neglect  or  offence  ^  ^ 
forfeit  and  pay  the  sum  of  50/. "  The  non-compliance  with  these  L  *^^^*  J 
directions  of  the  statute,  though  it  may  furnish  good  ground  of  action  ao-ainst  the 
master,  does  not  render  the  voyage  illegal.  It  has  been  insisted  that  a  non- 
compliance with  the  statute  at  all  events  amounts  to  unseaworthiness.  The 
cases,  however,  that  were  cited  all  shew,  that,  to  constitute  this  sort  of  unsea- 
worthiness, it  must  appear  that  there  was  a  crew  insufficient  in  point  of  num- 
ber, or  a  want  of  capacity  or  intelligence  in  the  master  or  other  officers.  Here 
there  is  nothing  of  the  kind  shewn.  I  therefore  think  the  sixth  plea  is  also 
bad  J  and  consequently  that  upon  both  the  demurrers  there  must  be  judgment 
for  the  plaintiff. 


INDEX 


TO   THE 


PKINCIPAL  MATTERS. 


Pages  referred  to  are  those  between  brackets,  thus  [     ] 


AVERAGE,  GENERAL. 

1.  General  average  is  the  general  contribu- 
tion that  is  to  be  made  by  all  parties  towards 
a  loss  sustained  by  some  for  the  benefit  of  all, 

492,  495 

2.  The  principle  of  this  general  contribu- 
tion is  derived  from  the  ancient  law  of  Rhodes, 
being  adopted  into  the  Digest,  with  an  ex- 
press recognition  of  its  true  origin,  492 

3.  In  a  marine  sense,  "contribution"  and 
"average"  are  synonymous  terms,  497 

4.  The  rule  of  the  Rhodian  law  is  this : — 
*'If  goods  are  thrown  overboard,  in  order  to 
lighten  a  ship,  the  loss  incurred  for  the  sake 
of  all  shall  be  made  good  by  the  contribution 
of  all,  497 

5.  In  case  of  necessity,  for  saving  the  lives 
of  the  passengers  in  a  ship,  it  is  lawful  for 
any  one  passenger  to  throw  the  goods  of  ano- 
ther overboard  ;  and  where  the  danger  ac- 
crued only  by  the  act  of  God,  as  by  tempest, 
every  man  ought  to  bear  his  loss  for  the  safe- 
guard and  life  of  a  man,  498 

6.  In  a  general  average,  one  thing  is  cer- 
tainly necessary,  viz :  that  the  ship  be  in  dis- 
tress, and  that  sacrificing  a  part  be  necessary 
to  preserve  the  rest,  499 

7.  Previous  deliberation  is  not  an  essential 
ingredient  in  determining  a  casting  overboard, 
if  the  master  and  crew  agree  that  it  is  neces- 
sary :  too  much  care  and  selection  of  goods 
very  justly  would  excite  a  suspicion  of  fraud, 

499 

8.  If  the  ship  ride  out  the  storm,  it  is  the 
duty  of  the  master,  if  she  arrive  at  her  port 
of  destination,  or  at  any  other  port,  to  draw 
up  an  account  of  the  jettison,  and  verify  the 
same  by  the  oath  of  himself  or  of  some  of  his 
crew,  as  soon  as  possible,  that  there  be  no 
opportunity  to  purloin  goods,  and  then  pre- 
tend they  were  cast  over  in  the  hour  of  dan- 
ger, 500 


9.  If  the  jettison  does  not  save  the  ship, 
but  she  perish  in  the  storm,  the  goods  saved 
are  not  to  contribute  to  the  loss  of  the  goods 
cast  overboard,  because  the  object  of  the  jet- 
tison was  not  attained,  500 

10.  But  if  the  ship  be  saved,  and  pursue 
her  voyage,  and  afterwards  be  lost,  the  goods 
saved  from  the  subsequent  loss  shall  contri- 
bute to  the  loss  of  the  goods  cast  over  on  the 
former  occasion,  500 

11.  If  in  the  act  of  jettison,  or  in  conse- 
quence of  it,  other  goods  are  broken,  damaged, 
or  destroyed,  the  value  of  these  must  be  in- 
cluded in  the  general  contribution,  and  dam- 
age done  to  the  ship  by  cutting  holes  to  effect 
jettison,  or  to  let  out  the  water,  500 

12.  If  the  ship  be  obliged  to  take  refuge 
in  a  port  to  which  she  was  not  destined,  and 
which  she  cannot  enter  without  lightening 
the  ship  by  taking  out  part  of  the  cargo,  and 
the  part  is  lost  in  the  craft  to  the  shore,  this 
loss,  which  was  occasioned  by  the  removal 
for  a  general  benefit,  must  be  repaid  by  a 
general  contribution,  501 

13.  All  loss  which  arises  in  consequence 
of  extraordinary  sacrifices,  or  expenses  incur- 
red for  the  preservation  of  the  ship  and  cargo 
come  within  the  description  of  general  aver- 
age, 501 

14.  The  expense  of  repairing  a  ship  in- 
jured by  resisting  a  privateer,  curing  the 
wounds  of  the  sailors,  and  the  ammunition 
expended,  are  not  the  subject  of  a  general 
average,  502 

15.  A  master  who  has  cut  his  mast,  parted 
with  his  cable,  or  any  other  part  of  the  ship, 
in  order  to  save  the  ship,  he  is  entitled  to 
compensation  by  a  general  average,  503 

16.  But  where  a  vessel  carried  a  press  of 
sail,  to  avoid  a  privateer,  and  was  damaged, 
this  is  not  a  general  average  loss,  503 

17.  Goods  laden  on  deck,  unless  sanc- 
tioned by  the  usage  of  trade,  though  they 


454 


INDEX. 


must  contribute  to  a  loss,  are  not  themselves 
the  subject  of  a  general  average,  504 

18.  But  the  owner  of  a  cargo  of  timber 
laden  on  deck,  pursuant  to  the  usage  of  the 
trade,  is  entitled  to  a  contribution,  in  the 
nature  of  general  average,  for  a  loss  by  jet- 
tison, 504 

1 9.  And  where,  in  an  action  by  a  shipown- 
er against  the  underwriter  on  "  the  ship,"  the 
declaration  stated  that  certain  pigs  were 
thrown  overboard,  for  the  safety  of  the  ship, 
and  the  plaiiititVwas  afterwards  forced  to  con- 
tribute to  the  general  average.  Plea,  that  the 
pigs  were  laden  on  deck,  by  reason  whereof 
the  defendants  were  not  liable  to  contribute 
to  the  average.  Held  bad,  for  not  showing 
that  the  lading  was  improper  under  the  cir- 
cumstances, 505 

20.  Boats  ought  to  be  lashed  on  deck,  but 
if  lashed  to  the  quarters  they  are  entitled  to 
contribution,  513 

21.  In  whaling  voyages  it  is  the  practice 
to  adjust,  on  the  principles  of  general  aver- 
age, the  loss  of  oil,  thrown  overboard  from 
the  deck,  where  it  is  carried  a  short  time  be- 
fore it  can  be  properly  and  safely  stowed  in 
the  hold,  513 

22.  If  a  ship  be  carried  by  force  into  a 
port,  the  charges  of  reclaiming  her,  and  the 
extra  wages  and  expen.ses  during  the  deten- 
tion, are  the  subject  of  a  general  average,  515 

23.  Extraordinary  wages  and  provisions 
expended  during  the  time  a  ship  goes  into  a 
port  to  repair,  are  not  the  subject  of  a  gen- 
eral average,  unless  in  the  case  of  urgent  ne- 
cessity, 516 

24.  Where  a  ship  is  obhged  to  go  into  a 
port  for  the  benefit  of  the  whole  concern,  the 
charges  of  unloading  and  reloading  the  cargo, 
and  the  wages  and  provisions  of  the  work- 
men hired  for  the  repairs,  are  general  aver- 
age, 517 

25.  The  wages  and  provisions,  and  the 
expenses  of  repairs,  where  a  sliip  goes  into 
port  in  order  to  repair  damage  by  a  tempest, 
are  not  the  subject  of  a  general  average,  519 

26.  General  principle  to  be  derived  from 
these  decisions,  520 

27.  If  the  master  cannot  borrow  money  to 
repair  his  ship  on  the  security  of  ship  or 
cargo,  he  may  sell  part  of  the  cargo  to  repair 
her,  so  as  to  enable  her  to  take  the  remainder 
of  the  cargo  to  its  port  of  destination ;  and 
the  money  so  obtained  will  make  the  subject 
of  a  general  average,  521 

28.  Goods  are  to  be  contribute  according 
to  their  value,  522 

29.  Wearing  apparel  and  jewels  belonging 
to  the  person  do  not  contribute.  522 

30.  Seamen's  wages  do  not  contribute, 

522 

31.  In  what  proportions  ship,  freight,  and 
cargo,  shall  contribute,  523 

32.  The  value   at  which   the  goods  cast 


overboard  are  to  be  estimated,  and  for  what 
value  those  saved  are  to  contribute,  524 

33.  The  time  when  the  contribution  is  to 
be  made,  525 

34.  The  place  at  which  the  average  is  to 
be  adjusted,  527 

35.  The  adjustment  is  to  be  made  accord- 
ing to  the  law  of  that  place,  527 

ARRESTS,  RESTRAINTS,   DETEN- 
TION OF  PRINCES,  &c. 
See  Total  Losses  and  Aiiandonment. 

1.  Malynesays,  "  that  the  assurers  are  lia- 
ble for  all  lo.sses  by  arrests,  detentions,  &c., 
happening  both  in  time  of  war  and  peace, 
committed  by  the  public  authority  of  princes, 
&c.,  305 

See  Roccus's  Opinion,  ib. 

2.  Lord  Mansfield  said,  in  the  ca.se  of  Goss 
v.  Withers,  that  the  assured  may  abandon  in 
case  merely  of  an  arrest  on  an  embargo,  by  a 
prince  not  an  enemy  ;  and  consequently  such 
an  arrest  is  a  loss  within  the  meaning  of  the 
word  "detention,"  296,  305 

3.  The  term  "people,",  in  the  clause, 
means  the  supreme  power — the  power  of  the 
country,  whatever  it  may  be,  306 

4.  What  is  an  embargo]  An  embargo  is 
an  arrest  laid  on  ships  or  merchandise,  by 
pubUc  authoriry,  or  a  prohibition  of  state, 
commonly  issued  to  prevent  foreign  ships 
from  putting  to  sea  in  time  of  war,  and  some- 
times also  to  exclude  them  from  entering  our 
ports,  306 

5.  This  term  has  also  a  more  extensive 
signification,  where  ships  are  detained  by  a 
prince  to  serve  him  in  an  expedition,  and  for 
this  end  have  their  ladings  taken  out,  with- 
out any  regard  to  the  government  they  obey, 

307 

6.  An  embargo  may  be  laid  on  shipping 
in  the  ports  of  Great  Britain  by  royal  procla- 
mation, in  time  of  war,  because  a  proclama- 
tion is  founded  on  a  prior  prerogative,  viz : 
that  the  king  may  prohibit  any  of  his  subjects 
from  leaving  the  realm,  307 

7.  But  in  times  of  peace  the  power  of  the 
King  of  Great  Britain  to  lay  such  restraints 
is  doubtful,  307 

8.  Where  a  neutral  vessel  was  seized  by 
a  foreign  power,  and  carried  into  port,  to  be 
searched  for  enemy's  property,  all  charges 
arising  out  of  the  improper  detention  must 
be  borne  by  the  underwriters,  308 

9.  A  neutral  ship  is  insured  at  and  from 
an  enemy's  port,  and  an  embargo  is  there  laid 
on  by  the  enemy.  The  assured  may  aban- 
don, and  recover  a  total  loss,  310 

10.  A  British  merchant  is  not  answerable 
for  the  damage  which  may  happen  to  a  for- 
eign ship  by  reason  of  an  embargo  laid  on  by 
the  British  Government,  312 


INDEX. 


455 


11.  Where  the  assured  is  a  subject  of  this 
country,  he  may  recover  against  a  British 
underwriter  for  a  loss  arising  out  of  a  deten- 
tion by  the  British  Government,  313 

12.  Every  man  is  a  party  to  the  public 
acts  of  his  own  Government,  and  cannot 
make  the  consequences  of  an  act  of  his  own 
state  the  foundation  of  a  claim  of  indemnity 
upon  a  British  subject  in  a  British  court  of 
justice,  any  more  than  he  could  if  such  act 
had  been  done  immediately  and  individually 
by  such  foreign  subject  himself,  313 

13.  Where  a  consignor  has  made  a  policy, 
and  his  conduct  or  that  of  his  nation  has  de- 
prived him  of  the  right  of  enforcing  it,  for  his 
own  benefit,  the  consignee  cannot  apply  it  to 
his  own  interest  as  if  it  had  been  made  on  his 
account,  319 

14.  An  alien  enemy,  with  respect  to  his 
birth,  domiciled  in  this  country  may,  in  the 
time  of  war,  protect  by  insurance,  either  for 
his  own  benefit  or  his  correspondent's,  a  ship- 
ment licensed  by  the  Crown  to  the  enemy's 
country,  320 

15.  A  plaintiff,  an  alien  in  respect  to  his 
birth,  may,  if  domiciled  here,  sue  in  our 
Courts.  The  legal  result  being  that  not  only 
the  plaintiff,  the  person  licensed  may  sue, 
but  that  the  commerce  itself  is  to  be  regarded 
as  legaUzed  for  all  purposes  of  its  due  and 
effectual  protection,  320 

See  the  subject  of  *«  Licenses," 
Part  2,  Sect.    2. 

16.  By  the  law  of  nations  notification  of  a 
blockade  is  notice  to  all  the  subjects  of  ihe  na- 
tion to  which  the  notification  has  been  made. 
But,  in  cases  of  insurance,  knowledge  of  the 
fact  must  be  proved  in  the  assured,  315 

17.  In  a  policy  of  insurance  from  Liver- 
pool to  a  blockaded  port,  the  ship  sailed  on 
the  voyage  before  the  blockade  was  notified 
in  this  country,  but  afterwards  put  into  ano- 
ther port  in  this  kingdom  after  notification  of 
the  blockade  in  the  London  Gazette,  and  it 
might  be  known  there :  the  jury  found  the 
captain  did  not  know  of  the  blockade.  Held 
that  the  knowledge  of  the  captain  was  not  to 
be  presumed  on  the  principle  that  notice  to  a 
state  is  notice  to  all  its  subjects,  but  it  was  a 
question  of  fact  properly  left  to  the  jury,  315 

THE  ASSURED. 

1.  Who  may  by  law  be  the  assured  in  a 
marine  policy  of  assurance,  1 

2.  Exception  in  the  case  of  alien  enemies, 

2 

3.  The  descriptions  of  the  persons  enabled 
to  sue  on  the  policy,  by  28  Geo.  3,  c.  56,   3 

4.  Decisions  on  this  act,  4 

5.  Any  of  his  Majesty's  subjects  may  make 
an  insurance  alleging  the  interest  to  be  in  his 
Majesty,  and  his  Majesty  may  adopt  and  ra- 
tify it,  7 


THE  ASSURERS. 

1 .  By  the  common  law  any  individual  or 
number  of  individuals  acting  in  partnership 
might  be  assurers,  530 

2.  But  this  giving  rise  to  a  set  of  adven- 
turers who  got  the  premiums  and  could  not 
pay  the  losses,  the  law  was  altered  by  found- 
ing two  chartered  companies,  giving  them  a 
monopoly ;  and  prohibiting  persons  in  part- 
nership being  assurers,  530 

3.  In  more  modern  times  this  has  been 
altered ;  and  at  this  day  any  persons,  whether 
in  partnership  or  not,  may  be  assurers,    531 

4.  But  the  two  chartered  companies  retain 
their  charters.     See  an  account  of  them,  531 

5.  Of  private  assurers  the  most  important 
are  the  underwriters  who  are  members  of 
Lloyd's  coffee-house,  532 

BARRATRY. 

1.  Barratry  is  defined  by  Postlethwaite  in 
his  Diet,  to  be  "when  the  master  of  a  ship, 
or  the  mariners,  cheat  the  owners  or  assurers, 
whether  by  running  away  with  the  ship,  sink- 
ing her,  deserting  her,  or  embezzling  the  cargo. 
And  in  vol.  i,  p.  136,  title  "Assurance,"  he 
says,  "  one  species  of  barratry  in  a  marine 
sense,  is,  when  the  master  of  a  ship  defrauds 
the  owners  or  assurers  of  her,  by  taking  her 
in  a  different  course  to  their  orders,"         322 

2.  Lord  Mansfield,  in  Vallejo  v.  Wheeler, 
Cowp.  p.  153,  says,  "I  take  the  word  to 
have  been  introduced  by  the  Italians,  the 
great  traders  of  the  modern  world."  In  the 
Italian  Diet,  the  word  "barratrare"  means  to 
cheat,  324,  334 

3.  Whether  the  loss  takes  place  during 
the  fraudulent  voyage  or  after  is  immaterial, 
because  the  voyage  is  equally  altered,       325 

4.  Where  a  ship  and  her  cargo  were  bar- 
ratrously  taken  out  of  her  course  by  the  mas- 
ter and  mariners,  and  part  of  the  cargo  sold, 
and  the  remainder  sent  home  in  another  ves- 
sel, held  that  this  was  a  total  loss  of  the  cargo 
the  moment  the  act  of  "  banatry"  was  com- 
mitted, 326 

5.  The  loss  must  take  place  during  the 
voyage,  and  within  the  time  limited  by  the 
policy,  328 

6.  Where  the  owner  of  a  ship,  by  a  con- 
tract, placed  the  entire  vessel  for  a  time  under 
the  sole  control  of  the  freighter,  an  act  done 
by  the  general  owner,  or  with  his  consent,  in 
fraud  of  the  freighter,  is  an  act  of  "barratry," 

329 

7.  Mr.  J.  Willes's  definition  of  "  barratry," 

329 

8.  If  the  master  deviate  from  the  voyage 
on  a  private  speculation  of  his  own  it  consti- 
tutes "barratry,"  325,  330 

9 .  If  a  master,  contrary  to  his  instructions, 
cruise  for  and  take  a  prize,  it  is  "barratry," 

331 


456 


INDEX. 


10.  The  master  of  an  American  slave  ship 
sails  to  an  enemy's  settlement  on  the  coast  for 
the  purpose  of  trading  to  more  advantage 
than  at  a  British  settlement  without  having 
instructions  to  go  there ;  his  ship  was  seized 
by  a  British  frigate :  this  trading  was  held  to 
be  "barratry,"  331 

1 1 .  The  master  must  do  nothing  contrary 
to  the  laws  of  his  country,  whether  with  or 
without  a  view  to  the  advantages  of  his  own- 
ers, 335 

12.  In  the  sense  in  which  "barratry"  is 
used,  as  applied  to  subjects  of  British  marine 
insurances,  it  is  considered  precisely  tanta- 
mount to  fraud,  334 

13.  If  the  master  of  a  ship  sail  out  of  port 
without  paying  port  dues,  whereby  the  goods 
are  forfeited,  lost  or  spoiled,  this  is  "barra- 
try," 335 

14.  If  the  master  sail  out  of  port  without 
leave  in  breach  of  an  embargo,  in  conse- 
quence of  which  the  owners  afterwards  sus- 
tain a  loss,  in  respect  of  sailors'  wages  and 
provisions,  by  the  detention  of  the  ship,  this 
is  "barratry,"  336 

15.  If  the  conduct  of  the  master  is  crimi- 
nal with  respect  to  the  state  it  is  "barratry," 
although  likely  in  his  opinion  to  advance  his 
owner's  interest,  337 

16.  A  deviation  by  the  master  through  a 
mistake  as  to  the  meaning  of  his  instructions, 
or  a  misapprehension  of  the  best  mode  of  car- 
rying them  into  effect,  will  not  constitute 
"barratry,"  338 

17.  The  freighter  for  the  voyage  is  owner 
of  the  ship,  pro  hdc  vice,  and  "barratry" 
cannot  be  committed  with  his  consent,     339 

18.  But  an  act  of  the  captain  with  the 
consent  of  the  owner  of  the  ship,  though 
without  the  privity  of  the  owners  of  the  goods, 
does  not  constitute  "barratry,"  340 

19.  Barratry  cannot  be  committed  against 
any  but  the  owners  of  the  ship,  341 

20.  If  an  owner  be  likewise  master  he 
cannot  commit  "barratry,"  242 

21.  The  mortgagor  of  a  ship  is  sufficient- 
ly the  owner  to  disable  him  from  committing 
"barratry"  if  he  also  be  master,  442 

22.  And  the  Court  of  Chancery,  in  a  case 
in  which  the  owner  and  master  after  mort- 
gaging his  ship  had  committed  "barratry," 
and  when  the  mortgagee  brought  an  action 
against  the  underwriter  to  recover  damages 
for  the  loss  he  had  sustained  by  this  act  of 
•'barratry,"  still  considering  the  mortgagor 
the  owner,  granted  an  injunction,  342 

23.  A  loss  is  well  alleged  to  have  hap- 
pened by  the  perils  of  the  sea,  if  supported 
by  proof  of  the  ship  being  wrecked,  although 
this  may  have  been  occasioned  by  the  "bar- 
ratry" of  the  master  and  mariners,  344 

24.  A  loss  is  well  alleged  to  have  hap- 
pened by  "barratry"  though  it  be  proved  to 


have  taken  place  by  the  joint  act  of  the  ene- 
my, aided  by  the  crew,  344 

25.  The  laws  of  this  country,  and  the  or- 
dinances of  some  foreign  nations,  for  the 
punishment  of  those  who  have  been  found 
guilty  of  the  more  heinous  acts  of  "barra- 
try," 345 

26.  And  of  piracy,  347 

BROKER. 

1 .  The  insurance  broker  goes  between  the 
assured  and  the  underwriter,  533 

2.  He  is  answerable  in  an  action  by  his 
employer  (the  merchant)  if  he  accepts  a  re- 
tainer, and  fails  in  performing  his  duty,  533, 

536 

3.  The  broker  is  agent  both  to  the  assured 
and  the  underwriter,  534 

4.  He  sometimes  acts  under  a  del  credere 
commission,  534 

5.  As  the  brokers  transact  the  principal 
part  of  the  business  for  the  merchants,  the 
law  gives  them  a  lien  upon  the  policy,     535 

6.  Although  the  broker  has  a  Hen,  he  may 
be  served  with  a  " subpoena  duces  tecum," 
on  a  trial  between  the  assured  and  the  under- 
writer, to  produce  the  policy,  for  he  does  not 
thereby  lose  his  lien,  536 

7.  There  are  three  cases  in  which  a  mer- 
chant has  a  right  to  expect  that  a  broker  will 
obey  an  order  to  insure,  537 

8.  If  a  broker  in  making  a  policy,  omits 
any  circumstance,  which  will  be  a  defence  in 
an  action  by  the  assured  against  the  under- 
writer, he  is  liable  in  an  action  to  the  amount 
of  the  assured's  loss,  538 

9.  In  an  action  against  a  broker  for  negli- 
gence, though  the  evidence  of  brokers  and 
underwriters  is  not  admissible  upon  a  matter 
of  fact  upon  which  the  jury  are  to  give  their 
verdict,  yet  they  may  be  called  to  shew 
whether  other  persons  of  skill  and  experience 
in  the  same  profession,  would  or  would  not 
have  come  to  the  same  conclusion  as  the  de- 
fendant, 539 

10.  In  an  action  against  an  agent  for  a 
breach  of  undertaking  according  to  special 
instructions,  the  declaration  alleged  the  duty 
of  the  defendant  to  be,  to  make  the  insurance 
according  to  the  terms,  or  give  notice  to  the 
plaintiff  of  their  inabiUty  to  do  so.  Held, 
that  the  implied  duty  of  the  defendant  would 
support  the  express  promise  alleged  in  the 
declaration,  54 1 

11.  And  where  in  an  action  against  a 
broker  for  not  making  an  insurance  accord- 
ing to  his  undertaking,  and  the  plaintiff  re- 
covered a  verdict,  on  a  motion  for  an  arrest 
of  judgment,  on  the  ground  that  the  duty  al- 
leged in  the  declaration  to  make  an  insurance 
was  larger  than  the  duty  of  the  defendant, 
who  only  ought  to  have  used  reasonable  care 


INDEX. 


457 


and  diligence  to  perform  what  he  had  under- 
taken. Held,  that  the  action  was  founded 
on  an  express  contract,  and  the  breach  not 
larger  than  the  terms  of  the  contract,  and  the 
allegation  that  the  defendant,  to  perform  his 
promise  "wrongfully  and  in  breach  of  his 
duty  and  retainer,  and  of  his  acceptance 
thereof,  wholly  neglected  and  refused,"  was 
a  legal  charge  on  the  face  of  the  declaration, 
and  sufficient  to  call  on  the  defendant  for  an 
answer,  545 

13.  If  in  an  action  against  an  agent,  the 
neglect  complained  of,  be  the  non-commu- 
nication of  a  material  fact  to  the  underwriters 
by  which  the  policy  was  voided,  the  agent 
may  by  way  of  defence  make  it  appear  that 
the  fact,  if  communicated,  would  have  made 
it  impossible  to  get  the  insurance  made  at  the 
premium  limited  by  his  instructions,         545 

13.  Settlement  between  the  broker,  the 
underwriter,  and  the  assured,  546 

14.  The  receipt  of  the  premium  on  the 
face  of  the  policy,  is  a  bar  to  an  action  by 
the  underwriter  against  the  assured,  except 
in  the  case  of  fraud,  547 

15.  But  between  the  underwriter  and  the 
broker  the  receipt  is  no  bar,  547 

16.  In  an  action  by  the  assured  against  the 
underwriter,  the  latter  cannot  set  off  the  pre- 
mium though  he  has  not  been  paid  by  the 
broker,  549 

17.  In  an  action  by  the  assignees  of  an 
underwriter  against  a  broker  for  premium, 
the  broker  may  set  off  losses  which  have  hap- 
pened before  the  bankruptcy,  for  which  pre- 
miums the  underwriter  had  debited  the  broker, 

552 

18.  See  the  earlier  cases  relating  to  the 
effect  of  the  death  or  bankruptcy  of  the  un- 
derwriters had  on  the  running  accounts  be- 
tween them  and  the  broker,  553,  556 

19.  The  usage  at  Lloyd's  of  passing  the 
accounts  between  the  broker,  the  underwriter, 
and  the  assured,  556,  567 

BOTTOMRY,  AND  RESPONDENTIA 
INTEREST. 

1.  Must  be  specially  mentioned  in  the  poli- 
cy as  such,  15 

2.  But  an  interest  in  expenses,  incurred 
by  the  captain  for  the  use  of  the  ship,  for 
which  he  charged  respondentia  interest,  was 
held  to  be  protected  by  a  policy  on  « '  goods, 
specie,  and  effects"  of  the  captain,  on  the 
grounds  solely  of  the  usage  of  the  Indian 
trade,  18 

CAPTURE. 

1.  When  a  British  subject  insures  against 
capture,  the  law  infers  that  the  contract  con- 
tains an  exception  of  captures  made  by  the 
government  of  his  own  country,  287 


2.  All  insurances  of  enemies'  property, 
from  the  effects  of  the  acts  of  the  government 
of  the  country  of  the  underwriters,  are  illegal 
at  the  common  law,  and  cannot  be  enforced, 

287 

3.  A  ship  insured  being  taken,  the  assured 
may  demand  as  for  a  total  loss,  and  abandon 
to  the  underwriter,  287 

4.  By  the  common  law  the  thing  taken 
from  the  owner  in  war  is  gone,  and  the  pro- 
perty so  taken  in  war  belongs  to  the  captors, 

290 

5.  On  a  policy,  "interest  or  no  interest," 
a  recapture,  after  being  in  an  enemy's  port 
will  not  avail  the  assurer,  291 

6.  It  is  immaterial,  as  between  the  assured 
and  the  assurer,  whether  the  property  by  cap- 
ture be  or  be  not  transferred  to  the  enemy  by 
the  law  of  nations,  293 

7.  If  the  ship  taken  by  an  enemy  escapes, 
or  is  retaken,  his  property  in  the  ship  is  re- 
vested, 294 

8.  The  practice  of  the  Court  of  Admiralty 
in  England  before  any  act  of  Parliament  com- 
manded restitution,  or  fixed  the  rate  of  salvage, 

295 

9.  Whatever  rule  ought  to  be  adopted  in 
favor  of  the  owner,  it  can  in  no  way  effect 
the  case  between  the  assured  and  the  assurer, 

295 

10.  The  ship  is  lost  by  capture,  though 
she  be  never  condemned  at  all  nor  carried  into 
any  port  of  the  enemy,  the  assurer  must  pay 
the  value,  295 

1 1 .  The  assurer  runs  the  risk  of  the  as- 
sured, and  undertakes  to  indemnify,  he  must 
therefore  bear  the  loss  actually  sustained,  and 
can  be  liable  to  no  more,  296 

12.  There  is  no  book,  ancient  or  modern 
which  does  not  say,  "that  in  case  of  the  ship 
being  taken,  the  assured  may  demand  as  for 
a  total  loss  and  abandon.  And  what  proves 
the  proposition  most  strongly  is,  that  by  the 
general  law  he  may  abandon  in  the  case 
merely  of  an  arrest,  on  an  embargo,  by  a 
prince  not  an  enemy,  296 

13.  The  chance  of  restitution  does  not  sus- 
pend the  demand  for  a  total  loss  upon  the 
assurer,  but  justice  is  done  by  putting  him  in 
the  place  of  the  assured  in  case  of  recapture. 

14.  In  the  Treatise  called  "Le  Guidon," 
where,  after  mentioning  the  right  to  abandon 
upon  a  capture,  he  adds,  "or  any  other  such 
disturbance  as  defeats  the  voyage,  or  makes  it 
not  worth  while,  or  worth  the  freight  to  pur- 
sue it,"  297 

15.  Where  a  neutral  ship  was  unjustly 
seized  as  a  prize,  and  being  libelled  in  the 
Court  of  Admiralty  by  a  decree,  against 
which  an  appeal  might  have  been  made  ;  but 
the  owners  dreading  the  hazard,  the  costs  and 
the  delay,  entered  into  a  compromise  with  the 
captors  that  they  should  for  a  sum  of  money 
suffer  a  reversal  of  the  sentence ;  held  that  the 


458 


rNDEX. 


assurers  were  liable  to  pay  the  money  agreed 

on,  and  paid  lo  tl»e  captors,  298 

10.    It  is  unlawCul  to  ransom  any  British 

ship  taken  by  the  enemy,  300 

17.  The  sentence  of  a  French  consul  in  a 
neutral  country  is  contrary  to  the  law  of  na- 
tions, and  void,  301 

18.  What  is  a  proper  averment  of  the  loss 
by  capture,  and  when  it  can  be  rightly  madel 

302 

DEVIATION.— «ce  Ship. 
FIRE. 

1.  "Fire"  is  expressly  insured  against  by 
the  underwriters  in  the  policy,  278 

2.  And  where  the  rigging,  &c.  of  a  ship 
were  put  on  shore  in  the  usual  course  of  the 
voyage  during  a  repair,  and  were  burnt  by 
accident,  the  underwriters  were  held  liable, 

278 

3.  And  where  a  ship  was  voluntarily  burnt 
to  prevent  her  falling  into  the  hands  of  the 
enemy :  this  was  held  to  be  a  loss  by  "fire" 
within  the  terms  of  the  policy,  282 

4.  And  where  a  fire  was  lighted  in  a  ship 
and  by  negligence  set  her  on  fire,  this  was 
held  to  be  a  loss  by  "fire"  within  the  terms 
of  the  policy,  282 

5.  And  where  an  insurance  on  "ship  and 
furniture,"  provisions  which  had  been  sent 
out  for  the  use  of  the  ship,  were  taken  out  of 
the  vessel  while  refitting  and  put  in  a  ware- 
house in  the  regular  course  of  the  trade,  and 
were  burnt  by  accident,  it  was  held,  that  as 
the  underwriters  had  insured  against  "fire" 
by  the  policy,  that  the  provisions  that  had 
been  consumed  by  "fire,"  and  not  by  the 
crew  were  protected  by  the  policy,  91 

EMBARGO. 

See  "Areest,  Detention  of  Kings,  &c." 

'•Total  Losses  and  Abandonment." 

FRAUD  IN  POLICIES. 

1.  Policies  are  vacated  and  annulled  by  the 
least  shadow  of  fraud  or  undue  concealment, 

571 

2.  There  are  three  distinct  cases  where  the 
policy  may  be  vacated  by  the  assured  or  his 
agent,  572 

3.  First, — where  the  assured  or  his  agent 
has  made  some  statement  which  he  knew  to 
be  false,  573 

4.  Where  goods  were  insured  as  the  goods 
of  an  ally,  but  were  in  fact  the  goods  of  an 
enemy,  this  is  a  fraud  and  the  policy  is  void, 

573 

5.  Where  an  agent  received  a  letter  stating 
a  ship  to  have  sailed  on  the  24th  November, 
and  the  agent  told  the  underwriter  that  she 
sailed  on  the  latter  end  of  December,  this  is  a 
fraud  and  the  policy  void,  573 


6.  Where  a  ship  was  warranted  a  Portu- 
guese, and  the  assured  by  bis  answer  to  a 
bill,  admitted  that  she  was  condemned  for  not 
being  a  Portuguese.     Policy  void,  574 

7.  A  representation  (contrary  to  the  truth) 
that  the  insurance  sought  to  be  made,  bad 
been  made  by  other  underwriters  at  the  same 
premium,  vitiates  the  policy  made  by  means 
of  such  misrepresentation,  575 

8.  Secondly, — case  where  the  assured  has 
stated  something  to  be  true,  vvliich  he  does 
not  know  to  be  true,  and  at  the  same  time 
suppressing  material  circumstances,  576 

9.  The  concealment  of  material  circum- 
stances vitiates  all  contracts  on  the  principle 
of  natural  law,  57G 

10.  On  a  representation  to  induce  a  party 
to  make  a  contract,  it  is  equally  false  for  a 
man  to  affirm  that  of  which  he  knows  noth- 
ing, as  it  is  to  aflirm  that  to  be  true  which  ho 
knows  to  be  false,  576 

11.  When  the  assured  having  heard  a  re- 
port that  a  ship  described  like  his  was  taken, 
went  and  insured  her  without  mentioning  the 
rumour  to  the  underwriter.  Policy  held  to 
be  void,  578 

12.  The  time  of  a  ship's  sailing  is  not  ma- 
terial to  be  communicated,  unless  she  be  a 
missing  ship,  or  unless  a  ship  which  sailed 
after  her  has  arrived,  579 

13.  A  ship  takes  in  her  cargo  at  L.  and 
sails  to  G.  An  insurance  is  made  on  the 
goods  from  G.  to  D.,  "to  begin  from  the 
loading."  The  policy  is  void,  it  being  a  false 
description,  calculated  to  induce  a  belief  that 
G.  was  the  port  of  loading,  581 

14.  Concealment  of  a  letter  from  which 
the  time  of  the  sailing  of  the  ship  might  be 
inferred,  is  material,  583 

15.  A  broker's  instructions  stated  that  a 
ship  was  ready  to  sail  on  the  24th  December. 
The  broker  represented  the  ship  to  be  in  port, 
when  she,  in  fact,  sailed  on  December  23. 
This  was  held  to  be  a  material  misrepresenta- 
tion, 583 

16.  Evidence  of  underwriters  is  admissible 
to  prove  what,  in  their  judgment,  is  a  mate- 
rial concealment  of  a  fact,  584 

17.  The  governor  of  a  fort  abroad  insures 
against  capture  for  a  year:  it  is  not  necessary 
to  disclose  his  speculations  on  the  probability 
of  an  attack,  586 

18.  The  underwriter  trusts  the  statement 
of  the  assured,  and  that  he  does  not  keep 
back  any  circumstances  within  his  knowledge 
to  mislead  him,  587 

19.  The  assured  need  not  mention  what 
the  underwriter  knows,  what  he  takes  upon 
himself  the  knowledge  of,  or  what  he  waives 
being  told,  588 

20.  The  underwriter  is  bound  to  take  no- 
tice of  natural  and  political  perils,  588 

21.  The  opinion  of  brokers  and  under- 
writers may  be  asked  as  to  matters  of  prac- 


INDEX. 


459 


tice  in  their  profession;  but  they  cannot  be 
asked  as  to  the  materiality  of  a  fact  on  which 
the  jury  are  to  give  their  verdict,  596 

22.  Tlie  insured  is  not  bound  to  disclose  a 
circumstance  made  material  by  a  foreign  ordi- 
nance of  v^hich  he  was  ignorant,  601 

23.  Thirdly, — Cases  in  which  the  policy 
is  void  by  misrepresentation,  602 

24.  Where  a  ship  sailed  with  a  greater 
force  than  was  represented  to  the  underwriters, 
held  that  the  representation  was  substantially 
true,  602 

25.  Distinction  between  a  warranty  and  a 
representation,  601 

26.  A  ship  insured  on  the  30th  January, 
from  New  York  to  Philadelphia,  is  represent- 
ed to  be  safe  in  the  Delaware  on  the  11th 
December,  when,  in  fact,  she  was  lost  on  the 
9th.  This  was  held  to  avoid  the  policy, 
though  the  bona  fide  result  of  the  assured's 
computation,  610 

27.  A  material  concealment  avoids  the  poli- 
cy, although  the  broker  thinks  it  immaterial, 

612 

28.  An  expectation  does  not  amount  to  a 
representation,  612 

29.  Where  a  ship  is  insured  at  and  from  a 
place,  and  does  not  arrive  there  for  some  time, 
this  need  not  be  communicated;  but  it  is  for 
the  jury  to  say  whether  the  delay  varies  the 
risk,  613 

30.  A  letter  ordering  an  insurance  is  put 
into  the  post  before  the  loss,  but  starts  after 
the  loss  is  known.  This  is  a  misrepresenta- 
tion, whether  arising  from  fraud  or  negli- 
gence, 615 

31.  To  an  action  on  a  policy  made  on  a 
ship  the  defendant  pleaded,  '  that  at  the  time 
of  making  the  policy,  the  plaintiff  wrongfully 
and  improperly  concealed  from  the  defendant 
certain  facts  and  information  which  the  jury 
at  the  trial  found  to  be  material,  and  was 
known  to  the  plaintiff  when  the  policy  was 
made.  Held  (dubitante,  Pollock,  C.  B.,) 
that  the  defendant  ought  to  have  given  some 
evidence  of  the  non-communication  of  the 
fact,  in  support  of  his  plea,  617 

32.  Where  the  policy  was  void  by  the 
fraud  of  the  assured,  the  premium  was  decreed 
to  be  returned,  626 

33.  Where  it  was  clear  that  the  assured 
had  heard  of  the  loss  before  an  order  was 
given  to  insure,  it  was  held  that  the  premium 
should  not  be  delivered  back,  628 

34.  If  an  underwriter  has  been  guilly  of 
fraud,  an  action  lies  against  him  to  recover 
the  premium,  629 

FREIGHT. 

1.  General  principles  relating  to  the  com- 
mencement of  the  risk  thereon,  159 

2.  The  cargo  ready  to  be  put  on  board,  but 
the  ship  not  ready  to  receive  it,  the  policy 
does  not  attach,  160 


3.  In  the  case  of  a  valued  policy  a  part  of 
the  cargo  only  on  board,  the  rest  ready,  the 
assured  recovered  for  the  whole,  160 

4.  If  a  ship  be  chartered  to  a  certain  place 
to  take  in  her  cargo,  and  on  her  way  there  be 
lost,  the  underwriter  on  freight  is  liable,    163 

5.  Where  a  ship  was  chartered  from  A.  to 
B.,  and  back,  at  a  certain  freight  for  the  out- 
ward voyage  and  the  current  freight  home, 
and  before  she  unloads  her  cargo,  and  before 
any  of  the  homeward  cargo  is  shipped,  she  is 
lost,  the  policy  on  the  homeward  freight  at- 
tached, 165 

6.  Where  freight  was  agreed  to  be  paid 
when  part  of  the  voyage  was  performed ;  but, 
before  the  freight  was  paid,  or  the  voyage  fin- 
ished, the  ship  was  lost;  as  the  charter-party 
treated  the  whole  as  one  voyage,  the  policy 
on  the  freight  attached,  165 

7.  When  there  is  not  an  entire  charter- 
party  for  the  whole  voyage  out  and  home,  and 
the  ship  takes  out  a  cargo  to  be  bartered  for 
goods  to  be  brought  home,  and  a  part  of  the 
outward-cargo  is  only  discharged  and  bartered, 
the  assurer  on  freight  for  the  homeward  voy- 
age can  only  recover  for  the  freight  of  the 
goods  on  board,  167 

8.  Where  a  ship  under  a  charter-party  was 
in  a  condition  to  take  in  her  cargo,  which  was 
ready  for  her,  but  was  lost  in  a  hurricane  be- 
fore the  goods  were  put  on  board,  held  that 
the  policy  on  the  freight  attached,  170 

9.  In  all  cases  where  the  freight  is  lost  by 
a  peril  insured  against,  the  assured  is  entitled 
to  recover,  though  no  goods  be  actually  on 
board,  provided  the  ship  is  ready  to  receive 
them,  and  the  goods  are  ready  to  be  shipped, 
or  the  owner  has  a  contract  with  any  one  for 
their  shipment,  171  to  175 

ILLEGAL  VOYAGES, 

1.  Where  an  insurance  is  made  on  a  voy- 
age expressly  prohibited  by  the  common,  sta- 
tute, or  maritime  law,  the  policy  is  void,  630 

2.  Where  an  insurance  was  made  upon  a 
cargo  of  goods  exported  to  New  York,  in 
direct  contravention  of  an  act  of  Parliament, 
held  that  the  insurance  was  void,  631 

3.  Where  an  insurance  was  made  in  direct 
contravention  of  the  exclusive  right  of  trading 
granted  to  the  East  India  Company  by  9  & 
10  Wra.  3,  c.  44,  the  underwriters  were  held 
to  be  discharged,  632 

4.  A  natural-born  subject  of  this  country, 
domiciled  in  a  foreign  country  in  amity  with 
this,  may  exercise  the  privileges  of  a  subject 
where  he  is  domiciled,  634 

5.  If  a  merchant  expatriates  himself  as  a 
merchant,  to  carry  on  the  trade  of  another 
country,  he  is  to  be  deemed  a  merchant  of 
that  country,  635 

6.  If  a  ship  be  insured  "at  and  from"  a 
place,  and  whilst  she  is  there  is  engaged  in 


4G0 


INDEX. 


an  illegal  traffic,  the  assured  cannot  recover 
for  a  loss  arising  in  the  homeward  voyage, 

G35 

7.  If  a  ship,  though  neutral,  he  insured  on 
a  voyage  [jrohibited  by  an  embargo  laid  on  in 
lime  of  war  by  the  prince  of  the  country  in 
whose  ports  the  ship  happens  to  be,  the  in- 
surance is  void,  636 

8.  15 ut  this  rule  docs  not  extend  to  trading 
contrary  to  the  revenue  laws  of  a  foreign 
country  ;  for  no  nation  takes  notice  of  the 
revenue  laws  of  another,  638 

9.  How  far  trading  with  an  enemy  in  time 
of  actual  war  is  illegal,  640 

10.  By  the  law  of  England,  641 

11.  An  insurance  on  a  neutral  vessel  trad- 
ing to  an  enemy's  country  is  valid,  642 

12.  Upon  the  breaking  out  of  a  war,  neu- 
trals have  a  right  to  carry  on  their  accustomed 
trade,  with  the  exception  of  contraband  ar- 
ticles, &c.,  642 

13.  But  a  neutral  has  no  right  to  engage 
in  the  colonial  trade  of  either  of  the  belliger- 
ent parties,  which  he  never  possessed  in  time 
of  peace,  643 

14.  By  the  common  law,  the  trading  with 
an  enemy  without  the  king's  license  is  illegal, 

644 

15.  The  power  of  licensing  particular  trades 
with  hostile  states,  in  time  of  war,  is  part  of 
the  prerogative  of  the  Crown,  644 

16.  The  king  may  qualify  his  license,  which 
must  be  strictly  conformed  to,  645 

1 7.  The  condition  must  be  strictly  complied 
with,  647 

18.  The  party  having  the  license  must 
show  his  authorit)'  to  have  it,  and  how  he  ob- 
tained it,  647 

19.  The  fraudulent  alteration  of  a  license 
avoids  it,  even  where  the  party  claiming  its 
protection  is  innocent  of  the  fraud,  648 

20.  The  Courts  of  Justice  will  permit  every 
thing  to  be  done,  though  not  expressed,  which 
is  necessary  in  order  to  effectuate  the  inten- 
tion of  his  Majesty  in  granting  the  license, 

648 

21.  If  the  voyage,  by  unavoidable  accident, 
be  delayed  beyond  the  time  for  which  the  li- 
cense was  granted,  yet  if  the  licensed  adven- 
ture be  bond  fide  prosecuted  within  any  part 
of  the  period,  the  voyage  is  protected,  and  the 
policy  on  it  valid,  652 

22.  An  insurance  made  on  behalf  and  on 
account  of  an  alien  enemy,  not  protected  by 
a  license,  is  void,  though  the  goods  were 
shipped  before  the  war  commenced.  Nor  can 
his  agent  maintain  the  action,  though  a  credi- 
tor of  the  assured  to  more  than  the  sum  as- 
sured, 653 

23.  Neither  can  an  action  be  maintained 
on  a  policy  on  the  property  of  an  alien  enemy, 
though  of  British  manufacture,  and  exported 
from  hence,  653 

24.  An  insurance  made  in  Great  Britain 


on  a  French  ship,  previous  to  the  commence- 
ment of  hostilities  between  Great  Britain  and 
France,  does  not  cover  a  loss  by  British  cap- 
ture, 655 

25.  When  a  British  subject  insures  against 
captures,  the  law  infers  that  the  contract  con- 
tains an  exception  of  captures  made  by  the 
government  of  his  own  country,  658 

30.  Where  a  voyage  is  prohibited  by  the 
navigation  laws  of  this  country,  the  insurance 
upon  the  adventure  is  illegal  also,  and  there- 
fore void,  059 

27.  By  a  recent  act  against  smuggling, 
persons  insuring  the  delivery  of  prohibited 
goods,  are  to  forfeit  500/.  over  and  above  any 
other  penalty  to  which  he  may  be  liable.  And 
there  is  the  like  penalty  on  the  assured,     660 

28.  Where  part  of  a  cargo  is  legal,  but  in- 
tended to  cover  an  illegal  design,  the  whole 
policy  is  void.  But  if  part  of  a  cargo  be  li- 
censed, an  insurance  of  that  part  is  not  vitia- 
ted, though  another  part  is  not  licensed  and 
illegal,  if  there  be  no  fraud,  660 

29.  Where  an  exportation  was  protected 
by  a  valued  policy,  the  goods  to  be  thereafter 
specified,  and  the  specification  contained  pro- 
hibited goods,  the  contract  was  entire,  and  the 
policy  void,  661 

30.  A  sentence  against  a  neutral  by  a  Bri- 
tish Vice  Admiralty  Court,  is  sufficient  from 
which  to  presume  that  the  ship  had  been  en- 
gaged in  some  illegal  transaction.  A  neutral 
meeting  by  an  agreement  a  British  vessel  for 
the  purpose  of  receiving  gunpowder  and  arms, 
is  illegal,  even  though  the  latter  should  have 
had  a  license  to  export  them  for  the  benefit  of 
trade,  661 

INTEREST  INSURABLE  IN  GOODS 
AND  PROPERTY,  &c.     Set  Usage. 

1.  Some  things  must  be  specially  named  in 
the  policy.  Horses  and  other  live  animals, 
&c.,  14 

2.  Bottomry  and  respondentia  interest  must 
be  so  specially  stated  in  the  policy,  15 

3.  Special  interests  in  goods  may  be  recov- 
ered under  the  term  <' goods"  in  the  printed 
policy,  17 

4.  And  generally  it  is  necessary  to  state 
accurately  the  subject-matter  of  the  insurance, 
but  it  is  not  essential  to  state  the  nature  of  the 
interest,  17 

5.  Where  the  consignee  of  goods  pledges 
the  bill  of  lading  with  another  person  as  a  se- 
curity for  advances  made  by  him,  and  upon 
an  agreement  that  the  consignee  shall  make 
an  insurance  on  the  goods  for  the  benefit  of 
the  pledgee,  and  deposit  the  policy  with  him, 
the  pledgee  may  sue  on  the  pohcy  in  his  own 
name,  35 

6.  At  common  law,  a  person  might  insure 
without  having  any  interest,  33 


INDEX. 


461 


7.  It  "is  settled  that  the  merchant  need 
only  prove  some  interest  to  take  it  out  of  19 
Geo.  2."     Lord  Mansfield,  37,39 

8.  Profits  expected  to  be  made,  are  a  good 
insurable  interest,  38 

9.  And  where  the  expected  profit  is  valued 
in  the  policy,  this  does  not  make  it  a  "wager" 
policy ;  the  plaintiff  must  prove  some  value, 
but  it  is  not  necessary  to  go  into  the  whole, 

39 

10.  The  distinction  between  a  valued  and 
a  wager  policy  is  this,  if  the  plaintiff  must 
prove  his  interest,  and  the  policy  only  saves 
him  the  trouble  of  showing  its  amount,  it  is 
a  valued  policy  and  good  :  but  if  it  dispenses 
with  all  proof  of  interest,  it  is  within  the  act 
and  void,  39 

11.  The  commissions  of  the  assured  as 
consignee  of  the  cargo,  valued  at  1,500/., 
held  a  'good  insurable  interest.'  40 

12.  The  principle  of  insuring  profits  is 
grounded  on  the  justice  of  allowing  maritime  j 
adventurers  to  protect  by  insurance  not  only 
the  thing  immediately  subjected  to  the  perils 
insured  against,  but  also  the  advantages  aris- 
ing from  the  arrival  of  the  thing  insured  safely 
at  its  place  of  destination,  41 

13.  But  there  must  be  a  reasonable  certainty 
of  the  profits,  and  not  a  mere  speculative  ex- 
pectation, 47 

14.  And  the  assured  must  show  that  but 
for  the  intervention  of  the  perils  insured 
against,  profit  would  have  been  made,         47 

15.  Where  goods  were  expected  to  arrive 
by  a  particular  ship,  but  there  was  no  con- 
tract in  respect  to  the  goods  which  the  assured 
could  have  enforced,  he  has  not  an  insurable 
interest :  it  amounts,  in  fact,  to  an  insurance 
on  a  void  contract,  50 

16.  An  insurance  made  on  any  packet 
boats  which  should  sail  from  Lisbon  to  Fal- 
mouth, for  one  year,  upon  any  "kind  of 
goods."  The  assured  had  an  interest  in  bul- 
lion on  the  Hanover  packet,  one  of  the  King's 
packets  between  Lisbon  and  Falmouth ;  it 
was  lost  within  the  time  in  the  policy:  as- 
sured had  an  insurable  interest,  50 

17.  The  captors  of  a  prize  have  an  insur- 
able interest  in  such  prize,  on  the  ground  of 
their  having  a  reasonable  expectation  of  their 
receiving  from  the  Crown  the  property  cap- 
tured, 5 1 

18.  The  commissioners  authorized  by  sta- 
tute to  take  into  their  care  all  Dutch  ships  de- 
tained or  brought  into  the  British  ports,  and 
dispose  of  them  according  to  directions  from 
the  Privy  Council,  may  insure  them  in  their 
own  names  after  seizure  at  sea  on  their  voy- 
age to  England,  55 

19.  The  King  has  an  undoubted  insurable 
interest  in  the  ships  and  cargo  taken  posses- 
sion of  under  the  authority  of  the  statute,  56 

20.  And  where  an  insurance  is  made  for 
the  benefit  of  his  Majesty  without  his  know- 


ledge, his  Majesty  may  ratify  it,  and  the  in- 
surance will  enure  to  his  benefit,  60 

21.  The  above  rule  applies  to  any  person, 

62 

22.  A  defeasible  right  is  frequently  insur- 
able. The  indefeasibiiity  of  it  is  not  the  cri- 
terion of  an  insurable  interest,  66 

23.  A  consignee  has  a  good  insurable  in- 
terest, 68 

24.  If  at  the  time  of  making  an  insurance, 
the  assured  had  an  insurable  interest  in  the 
thing  insured,  it  is  immaterial  that  the  pro- 
perty may  have  passed  to  another  party,  for 
the  assured  may  sue  for  his  benefit,  70 

25.  If  goods  be  consigned  to  a  merchant, 
and  he  makes  an  insurance  upon  them  when 
he  knows  they  have  been  despatched,  and  then 
a  "stoppage  in  transitu"  takes  place,  and 
then  a  loss,  the  assured  cannot  sue,  for  he  had 
lost  his  right  in  his  interest  before  the  loss 
happened,  71 

26.  Where  the  Courts  see  that  on  the  face 
of  the  policy  there  is  no  contract  of  indemnity 
between  the  parties,  but  only  a  gaming  trans- 

j  action,  they  never  hesitate  in  declaring  the 
]  policy  void,  72 

27.  Where  by  the  express  terms  of  a  char- 
ter-party, the  shipowner  makes  a  stipulation 
with  the  freighter,  that  part  of  the  freight 
shall  be  paid  in  advance,  the  freighter  has  an 
insurable  interest  in  that  advance  :  but  a  mere 
loan  for  the  use  of  the  ship  gives  him  no 
insurable  interest,  74 

28.  The  underwriters  on  a  policy  "on  mer- 
chandises," are  not  liable  to  charges  and  ex- 
penses incurred  at  the  ship's  port  of  loading, 
considered  as  additional  value  imparted  to  the 
goods,  77 

JETTISON. 

Where  a  captain  threv/  a  quantity  of  dol- 
lars overboard,  to  prevent  them  falling  into 
the  hands  of  the  enemy,  by  whom  he  was 
about  to  be  attacked,  and  was  immediately 
after  captured,  this  was  held  to  be  a  loss  by 
"jettison"  in  the  general  use  of  the  terra,  or 
at  any  rate  to  be  a  loss  ejusdeni  generis,  and 
protected  by  the  general  terms  of  the  policy 
"all  other  perils,"  «&c.  285 

"LOST,  OR  NOT  LOST." 

1.  These  words  are  peculiar  to  English  po- 
licies, 10 

2.  If  the  contingent  event  has  happened  at 
the  time  of  making  the  insurance  to  the  know- 
ledge of  one  of  the  parties  only,  the  policy  is 
void  on  the  ground  of  fraud,  11 

3.  The  assured  makes  no  assurance  to  the 
assurer  that  the  ship  or  goods  are  safe  at  the 
time  of  making  the  insurance,  10 

4.  A  party  may  make  an  insurance  on 
"goods"  "lost  or  not  lost,"  though  he  may 


462 


INDEX. 


have  acquired  his  interest  after  an  average  loss 
has  happened,  unless  he  bought  them  with  a 
knowledge  of  the  damage,  12 

5.  It  is  no  answer  to  an  action  on  a  pohcy 
"lost  or  not  lost,"  that  the  interest  was  not 
acquired  till  after  the  loss,  12 

6.  Such  a  policy  is  a  "contract  of  indem- 
nity" for  past  as  well  as  future  losses,  12 

LOSSES. 

I.    Total.         II.   Average. 

I.  Total  Losses  and  Abandonment. 

1.  The  words  in  the  policy,  "and  in  case 
of  any  loss  or  misfortune,"  lead  to  the  in- 
quiry respecting  the  distinction  between  total 
and  average  losses,  354 

2.  The  doctrine  of  total  losses  "  on  goods" 
as  distinguished  from  average  losses  explained, 

355 

3.  Whether  a  loss  ' '  on  goods"  be  total  or 
average  in  its  nature  must  depend  upon  gen- 
eral principles,  357 

4.  The  object  of  the  policy  is  to  obtain  an 
indemnity  for  any  loss  the  assured  may  sus- 
tain by  the  goods  being  prevented,  by  the 
perils  of  the  sea,  from  arriving  in  safety  at 
their  place  of  destination,  357 

5.  Whether,  upon  such  an  event,  the  loss 
is  total  or  average  depends  upon  circum- 
stances; but  the  existence  of  the  goods,  or 
any  part  of  them  in  specie,  is  neither  a  con- 
clusive nor  in  many  cases  a  material  circum- 
stance to  that  question,  357,  358 

6.  If  the  goods  be  of  an  imperishal)le  na- 
ture, if  the  assured  become  possessed  of  them, 
and  have  an  opportunity  of  sending  them  to 
their  destination,  the  mere  retardation  of  their 
arrival  may  be  of  no  prejudice  to  them,  more 
than  the  expense  of  reshipment.  In  such  a 
case  the  loss  can  be  but  an  average  loss  even 
though  the  assured  elect  to  sell  them  where 
they  have  been  landed,  358 

7.  But  if  the  goods  once  damaged  bv  the 
perils  of  the  sea,  are,  by  reason  of  that  dam- 
age, in  such  a  state,  though  the  species  inay 
not  be  utterly  destroyed,  that  they  cannot  be 
reshi|)p<;d  into  the  same  or  any  other  vessel ; 
if  that  before  the  termination  of  the  original 
voyage  the  species  itself  would  disappear,  and 
the  goods  assume  a  new  form,  losing  all  their 
original  character;  if,  though  imperishable, 
they  are  in  the  hands  of  strangers,  not  under 
the  control  of  the  assured,  if  by  any  circum- 
stances over  which  he  has  no  control,  thoy 
can  never,  or  in  any  assignaiile  period,  he 
brought  to  their  original  destination  ;  in  any 
of  these  cases,  the  circumstance  of  their  being 
in  specie  at  that  forced  determination  of  the 
risk,  is  of  no  importance.  The  loss  is,  in  its 
nature,  total  to  him  who  has  no  means  of  re- 
covering his  goods,  whether  his  inability  arises 


from  their  annihilation  or  from  any  other  in- 
superable obstacle,  358 

8.  When  a  total  loss  has  thus  taken  place 
before  the  termination  of  the  insured  voyage, 
with  a  salvage  of  some  portion  of  the  subject 
insured  which  has  been  converted  into  money, 
the  assured  may  recover  as  for  a  total  loss 
without  an  abandonment,  360,  366 

9.  Some  account  of  the  origin  and  history 
of  abandonment,  361 

10.  The  history  of  our  own  laws  furnishes 
few,  if  any,  illustrations  on  the  subject  before 
the  time  of  Lord  Mansfield ;  and  that  great 
Judge,  in  laying  down  the  rules  and  princi- 
ples in  the  leading  cases  on  this  subject,  was 
obliged  to  resort  to  the  aid  of  foreign  codes 
and  to  the  opinions  of  foreign  jurists,  for  his 
guide  and  information,  361 

1 1 .  And  even  those  foreign  rules  are  of 
very  modern  date,  361 

12.  When  a  policy  of  assurance  was  con- 
sidered in  the  nature  of  a  wager,  the  notion  of 
abandonment  was  never  entertained  or  thought 
of,  351 

13.  When  assurances  became  contracts  of 
indemnity,  the  obligation  of  abandonment  be- 
came the  necessary  consequence  of  confining 
the  contract  to  that  object,  362 

14.  In  some  foreign  codes  abandonment 
was  imperative,  and  such  formerly  was  the 
law  in  France,  by  the  ordinances  of  Louis 
XIV.  in  1681.  But  now,  by  the  code  of 
commerce,  abandonment  is  confined  to  those 
effects  which  are  the  object  of  the  assurance 
and  the  risk,  363 

15.  But  now  the  law  relating  to  marine 
insurances  is  quite  settled  in  this  country,  and 
the  nature  and  principle  of  the  law  of  aban- 
donment is  quite  established  by  decisions  in 
our  courts  of  justice,  364 

16.  The  assurer  engages  that  the  thing  in- 
sured shall  arrive  at  its  destined  termination 
in  perfect  safety,  364 

17.  The  assured  when  he  elects  to  treat  a 
case  as  a  total  loss,  must  make  a  cession  to 
the  assurer  of  all  his  right,  and  in  a  reasonable 
time,  365 

IS.  The  assured  may  prevent  himself  from 
recovering  a  total  loss,  if  he  voluntarily  does 
any  act  whereby  the  interests  of  the  underwri- 
ters may  be  prejudiced,  366 

19.  In  ca[)ture  the  chance  of  restitution 
does  not  suspend  the  demand  for  a  total  loss 
upon  the  underwriter,  371 

20.  In  questions  upon  policies,  the  contract 
as  an  indemnity,  and  nothing  else,  is  always 
liberally  considered,  371 

21.  In  all  cases  the  assured  may  elect  not 
to  abandon,  372 

22.  The  master  cannot  sell  the  ship  in 
case  of  a  loss,  except  in  a  case  of  absolute  ne- 
cessity, 378 

23.  As  between  the  assured  and  assurer, 
the  ship  is  totally  lost  by  capture,  though  by 


INDEX. 


463 


recapture  it  may  revert  to  the  former  owner, 

383 

24.  If  the  voyage  be  so  defeated  as  not  to 
be  worth  further  pursuit,  the  assured  may 
abandon,  382 

25.  But  it  is  repugnant  on  a  contract  of 
indemnity  to  recover  for  a  total  loss,  when 
the  event  has  decided  that  an  average  loss 
only  has  been  sustained,  383 

2(5.  If  the  .sliip  be  recovered  after  a  long 
detention,  it  is  not  a  total  loss  even  on  a 
wager  policy,  384 

27.  The  assured  shall  not  be  allowed  to 
abandon,  cither  to  avail  himself  of  having 
overvalued,  or  of  the  market  below  the  inv.)ice 
price,  386 

28.  The  assured  can  recover  only  an  in- 
demnity, according  to  the  nature  of  his  case, 
at  the  time  of  bringing  the  action,  or  at  the 
time  of  his  ofTcr  to  abandon,  387 

29.  The  ellect  of  abandonment  is,  that  if 
the  offer  turns  out  to  have  been  properly  made 
upon  the  supposed  facts  which  turns  out  to 
be  true,  the  assured  has  put  himself  in  a  con- 
dition to  insist  on  his  abandonment,  390 

30.  The  abandonment  must  be  viewed 
with  regard  to  the  ultimate  state  of  facts  ap- 
pearing before  action  brought,  393 

31.  In  deciding  the  question  whether  a 
party  not  insured  would  prefer  giving  up  the 
adventure  and  repairing  a  ship  at  an  enormous 
price — it  is  proper  that  the  jury  should  take 
into  their  consideration  the  national  character 
of  the  ship  which  materially  afliscts  her  value, 

399 

32.  Where  the  defendant  had  paid  48/. 
into  Court,  and  the  jury  found  that  there  was 
only  48/.  per  cent,  damage.  It  was  held  to  be 
only  an  average  loss;  though,  when  she  ar- 
rived at  her  port  she  was  not  worth  repair- 
ing, 402 

33.  Where  a  ship  is  obliged,  by  sea-damage 
to  put  back  into  port,  and  cannot  be  repaired 
there,  and  no  other  vessel  could  be  obtained, 
and  the  cargo  is  much  damaged,  this  is  a  total 
loss,  406 

34.  A  mere  retardation  of  a  voyage  where 
the  insurance  was  on  the  cargo  not  of  a 
perishable  nature,  is  not  a  ground  for  aban- 
donment, 408 

35.  If  a  ship  be  in  such  a  situation  that  the 
master  has  the  means  within  his  reach  to  re- 
store it  to  the  character  of  a  ship,  it  is  not  a 
total  loss.  There  is  no  principle  of  insurance 
law  as  loss  by  sale,  409 

30.  A  ship  being  wrecked  was  sold  by  the 
owner,  and  soon  after  got  off  by  the  purchaser, 
though  at  a  great  expense.  The  owner  can- 
not treat  this  as  a  total  loss,  if  the  .ship  could 
have  been  repaired  so  as  to  have  sailed  home 
in  ballast,  or  with  some  sort  of  a  cargo,    409 

37.  In  what  cases  abandonment  must  be 
given,  411 

Vol.   VIL— F2 


38.  Where  the  thing  insured  subsists  in 
specie,  and  there  is  some  chance  of  recovery, 
there  must  be  an  abandonment,  412 

39.  Where  a  ship  is  so  much  injured  by 
the  perils  of  the  sea,  that  she  ciiiinot  be  re- 
paired at  all,  except  at  an  cxjiense  exceeding 
her  value  when  repaired,  the  assured  may  re- 
cover without  an  abandonment,  412 

40.  The  assured  cannot  abandon  on  account 
of  the  port  of  destination  being  shut  against 
the  ships  of  the  nation  to  which  the  ships  be- 
long, 414 

41.  If  a  ship  insured  to  a  foreign  port,  learn- 
ing in  the  course  of  her  voyage  that  an  embargo 
is  laid  on  the  ships  of  her  nation,  wait  at  a 
place  as  near  as  she  safely  can  till  the  embargo 
is  removed,  the  goods  on  board  insured,  will 
in  the  meantime  be  protected  by  the  policy, 

417 

42.  But  if  instead  of  doing  so,  she  sails 
back  to  her  port  of  outfit,  and  is  lost,  she  will 
be  considered  to  have  abandoned  her  voyage, 
and  the  underwriters  are  discharged,         417 

43.  Where  a  loss  was  attributable  merely 
to  the  fear  of  a  hostile  embargo,  at  the  port  of 
destination,  held  not  to  be  a  loss  by  the  deten- 
tion or  arrest  of  kings,  417 

44.  The  effect  of  abandonment  of  the  ship 
to  the  underwriters,  so  as  to  pass  to  them  the 
ship's  future  earnings  or  freight,        420,  427 

45.  And  where  there  are  separate  insu- 
rances on  the  ship  and  freight,  and  the  owner 
abandons  to  the  underwriters  both  of  ship  and 
freight,  the  abandonee  of  the  ship  has  a  right 
of  the  after  accruing  freight,  independently  of 
the  abandonee  of  freight,  who  may  have  his 
own  remedy  against  the  owners,  where  he  had 
insured  their  freight,  which  being  lost,  was 
paid  by  the  underwriters  on  freight,  with  an 
agreement  that  he  was  to  have  the  benefit  of 
the  abandonment  to  him  of  the  freight  to  be 
earned,  427,  428,  429 

46.  Freight  follows  as  an  incident  to  the 
property  in  the  ship,  427 

47.  The  abandonee  of  a  ship  has  all  the 
rights  of  the  shipowner  cast  upon  him,      428 

48.  Within  what  time  abandonment  ought 
to  be  made]  In  England  the  assured  ought 
to  abandon  to  the  underwriters  as  soon  as  he 
hears  of  the  loss  and  elects  to  do  so,  430 

49.  In  foreign  maritime  states,  the  time  of 
abandonment  in  different  voyages  is  fixed  by 
positive  regulations,  430 

50.  The  assured  by  the  law  in  England 
must  make  his  election  speedily.  He  cannot 
lie  by  and  treat  the  loss  as  average,  and  after- 
wards abandon  to  the  underwriters,  432 

51.  So  an  underwriter  is  bound  to  say, 
within  a  rea.sonable  time  after  notice  of  aban- 
donment, whether  he  will  accept  it  or  not,  433 

52.  An  abandonment  may  be  by  parol,  but 
it  should  be  certain ;  the  word  'abandon'  ought 
to  be  used,  433 


464 


INDEX. 


II.  Average  Losses. 

1.  In  an  average  loss  the  thing  insured  is 
supposed  to  exist  in  specie,  but  there  is  a  pos- 
sibility, however  remote,  of  its  arriving  at  its 
destination,  or  at  least  of  its  value  being  in 
some  way  affected  by  the  means  which  may 
be  adopted  for  the  recovery  or  preservation  of 
it,  435 

2.  Whether  a  loss  be  total  or  average  in  its 
nature,  must  depend  upon  general  principles, 

436 

3.  If  the  goods  be  of  an  imperishable  nature, 
if  the  assured  become  possessed  of  them,  or 
can  have  the  control  of  them,  if  they  have  an 
opportunity  of  sending  them  to  their  destina- 
tion, the  mere  retardation  of  their  arrival  may 
be  no  prejudice  to  them,  except  the  expense 
of  reshipment  in  another  vessel,  436 

4.  And  where  the  goods  consisted  of  copper 
which  was  wholly  uninjured,  and  of  iron, 
which  was  partially  damaged,  and  the  assured 
had  possession  of  them,  and  the  ship  was  capa- 
ble of  repair,  and  might  have  prosecuted  the 
voyage — this  was  held  to  be  an  average  loss, 

437 

5.  And  where  some  rice  had  arrived  at  its 
destination,  and  though  damaged,  was  deliv- 
ered to  the  consignees  in  a  saleable  state,  as 
rice — this  is  only  an  average  loss,  437 

6.  And  where  some  tobacco  and  sugar, 
though  damaged  by  the  perils  of  the  sea,  were 
in  the  hands  of  the  owner,  and  might,  for  any 
reason  that  appeared,  have  been  forwarded  to 
its  port  of  destination — held  to  be  an  average 
loss,  437 

7.  And  where  some  wheat  was  partly  saved, 
and  was  in  the  hands  of  the  shipper:  was 
kilndried,  and  might  have  been  forwarded,  as 
the  rest  of  the  cargo  was,  to  its  port  of  desti- 
nation; but  the  shipper,  after  dealing  with  it 
as  his  own,  abandoned  too  late.  Held  to  be 
only  an  average  loss,  438 

8.  So  in  the  case  of  a  ship,  if  she  be  not 
bodily  and  specifically  lost,  and  there  be  no 
circumstances  attending,  which  would  render 
the  loss  total  by  the  law  of  marine  insurances: 
this  is  only  an  average  loss,  439 

9.  The  loss  of  the  original  voyage  will  not 
make  a  constructive  total  loss  of  the  ship;  if 
she  can  be  repaired  so  as  for  her  to  sail  to  her 
destination,  in  ballast,  or  with  any  kind  of  a 
cargo  so  as,  on  her  arrival,  to  be  worth  the 
money  expended  on  her,  she  ought  to  be  re- 
paired for  the  purpose,  where  it  is  possible  to 
do  it,  440 

10.  The  rule  for  calculating  the  average 
losses  on  goods,  is  laid  down  by  Lord  Mans- 
field in  Lewis  v.  Rucker,  and  his  Lordship 
said  afterwards  in  another  case,  that  the  rule 
laid  down  in  Lewis  v.  Rucker,  should  always 
be  followed  where  there  was  a  description  of 
casks  or  goods,  440 

IL   But  where  the  property  consisted  of  a 


variety  of  goods,  and  part  of  them  were  lost 
by  the  perils  of  the  sea,  the  only  rule  was  to 
go  into  an  account  of  the  whole  valued  in  the 
policy  and  take  a  proportion  of  the  whole  value 
as  the  amount  of  the  goods  lost,  441 

13.  Upon  a  policy  on  goods  to  recover  an 
average  loss,  it  is  immaterial  whether  the  goods 
arrive  at  a  good  or  a  bad  market,  for  the  true 
rule  to  estimate  the  loss,  is  to  take  them  at  the 
fair  invoice  price,  441 

13.  And  the  underwriter  is  not  liable  to 
any  loss  that  may  arise  from  the  difference  of 
the  exchange,  441 

14.  The  underwriter  is  not  restricted  to  the 
amount  of  his  subscription,  but  he  may  be 
subject  to  several  average  losses,  or  to  an  aver- 
age and  total  loss,  or  to  money  expended  "in 
and  about  the  safeguard  and  recovery  of  the 
ship,"  to  a  much  greater  amount  than  his  sub- 
scription, 442 

15.  But  the  assured  cannot  recover  for  more 
than  he  has  been  damnified,  and  cannot  re- 
cover for  an  average  loss,  which  has  not  been 
paid  by  the  underwriters,  when  it  is  afterwards 
followed  by  other  circumstances  which  render 
the  previous  deterioration  a  matter  of  perfect 
indifference  to  the  assured's  interest,   443,  449 

16.  The  assured  cannot  recover  for  an  ex- 
pense which  might  have  been  incurred,  but 
never  was  incurred,  450 

17.  Where  repairs  are  actually  done,  and 
prudently  done,  they  are  a  fit  measure  of  the 
assured's  loss:  he  is  so  much  the  worse  for  a 
peril  within  the  policy,  450 

18.  Expenses  of  this  kind  come  under  the 
clause  of  the  policy,  which  enables  the  assured 
to  lay  out  money  for  the  benefit  of  all  con- 
cerned, 451 

19.  The  proportion  of  the  damage  which 
the  assured  has  sustained,  is  to  be  calculated 
from  the  gross  and  not  the  net  prices  of  the 
sound  and  damaged  goods  at  the  port  of  deliv- 


ery. 


45^ 


20.  In  an  open  policy  the  invoice  price, 
together  with  the  premium  of  insurance  and 
commission,  form  the  basis  of  the  value  of  the 
goods,  454 

21.  In  policies  on  freight,  the  loss  is  calcu- 
lated on  the  gross  and  not  on  the  net  amount, 

456 

22.  Of  the  common  memorandum  in  the 
policy,  457 

23.  It  has  been  uniformly  held  upon  this 
clause,  that  the  underwriters  can  in  no  case 
be  answerable  for  an  average  loss  to  such 
goods  mentioned  in  the  memorandum,  unless 
the  ship  bo  stranded,  464 

See  "Stranding"  in  the  article  "Ship." 

24.  On  a  policy  on  wheat,  with  the  com- 
mon memorandum,  and  the  wheat  sustained 
an  average  damage,  56/.  19a-.  8d.  per  cent. 
The  underwriters  held  not  liable,  465 


INDEX. 


465 


25.  A  ship  with  a  cargo  of  fruit,  is  forced 
by  stress  of  weather  to  put  into  a  port  out  of 
her  regular  course.  The  fruit  is  so  spoiled  by 
the  seavvater,  and  stinks  so,  that  the  govern- 
ment prohibited  the  landing:  the  ship  also  is 
so  much  damaged  as  not  to  be  able  to  proceed  : 
held  to  be  a  total  loss,  469 

2G.  Where  a  cargo  of  fruit  was  captured 
and  recaptured,  and  brought  to  its  port  of  des- 
tination, but  dauKiged  eighty  per  cent.,  held 
to  be  only  an  average  loss,  471 

27.  In  an  action  on  a  policy  on  peas,  the 
peas  arrived  at  the  port  of  destination,  but  so 
much  damaged,  as  to  be  sold  for  three-fourths 
less  than  the  freight;  held  that  as  the  goods 
mentioned  in  the  memorandum,  arrived  at  the 
market,  the  underwriters  were  not  liable,  472 

28.  Where  the  policy  was  declared  to  be 
on  hogsheads  of  sugar,  and  every  hogshead 
was  saved  with  some  sugar  in  it,  this  was  held 
an  average  loss,  473 

29.  The  memorandum  is  likewise  usually 
modified  by  an  express  stipulation  to  pay  aver- 
age on  each  species  of  produce  and  on  sepa- 
rate packages,  474 

30.  But  this  stipulation  does  not  prevent  the 
average  being  calculated  on  the  whole  cargo, 
if  it  amount  to  three  or  five  per  cent,  on  the 
whole,  474 

3 1 .  On  the  words  "  free  from  average  under 
three  per  cent."  the  underwriter  is  liable  for 
the  amount  of  the  aggregate  of  several  average 
losses,  each  less  than  three  per  cent.,  but 
amounting  in  the  whole  together  to  more,  475 

The  Adjustment. 

32.  If  an  agent  had  subscribed  the  policy, 
and  had  authority  to  do  so,  he  has  also  authority 
to  sign  the  adjustment,  481 

33.  The  adjustment  is /jri;?i«/ac('e  evidence 
against  the  underwriter  without  any  further 
proof  of  the  loss:  except  in  cases  of  fraud, 

481 

34.  Where  evidence  was  given  that  after 
an  adjustment  doubts  had  arisen  in  the  minds 
of  the  underwriters,  and  that  they  refused  to 
pay.  Held  that  the  plaintiff  must  give  further 
proof,  483 

35.  The  effect  of  the  adjustment  is  to  throw 
the  "onus  probandi"  upon  the  underwriter, 

484 

36.  An  underwriter  who,  upon  a  full  dis- 
closure of  facts,  has  signed  his  initials  to  an 
adjustment  without  paying  the  loss,  is  not 
precluded  in  an  action  against  him,  from  avail- 
ing himself  of  the  circumstances  which  he  was 
acquainted  with,  before  signing  the  adjust- 
ment, 485 

37.  An  adjustment  is  not  binding  upon  an 
underwriter,  if  his  attention  be  not  drawn  at 
the  time  to  circumstances,  by  which  'he  un- 
derwriters would  have  been  discharged,  though 


he  then  had  the  means  of  acquainting  himself 
with  them,  48C 

38.  But  where  there  is  a  full  knowledge  of 
the  facts  and  a  settlement  made,  the  assured 
cannot  resort  again  to  the  underwriter  in  any 
contingency  of  the  event,  487 

39.  The  production  of  a  policy  with  an  ad- 
justment indorsed  on  it,  and  the  underwriter's 
name  run  through,  is  not  of  itself  proof  of 
payment,  487 

40.  If  at  the  time  of  the  adjustment  the 
underwriter  pays  as  for  a  total  loss,  and  it  turn 
out  afterwards  only  an  average  one,  he  shall 
not  recover  the  money  back,  but  he  stands  in 
the  [)Iace  of  the  assured  by  having  the  benefit 
of  salvage,  488 

41.  But  where  a  compromise  has  been  en- 
tered into  by  the  underwriters,  they  can  make 
no  claim  to  a  restitution  at  a  future  period, 

490 

MASTER  OF  THE  SHIP. 

1.  Every  ship  must  have  a  master  of  com- 
petent skill,  110 

2.  And  where  any  loss  occurs  from  the 
ignorance  of  the  master,  the  underwriters  arc 
discharged,  110,  113 

3.  The  master  is  frequently  called  upon  to 
exercise  his  judgment,  and  to  act  to  the  best 
of  his  understanding  for  the  benefit  of  both 
parties ;  and  if  he  were  proved  to  be  a  person 
of  competent  skill  when  he  sailed  on  the  voy- 
age, the  underwriter  is  liable  for  the  conse- 
quence of  his  acts,  113 

4.  If  a  master  do  what  is  usual  in  the  course 
of  a  particular  voyage,  and  a  loss  accidently 
happen  at  the  time,  the  underwriters  continue 
liable,  for  when  they  underwrote  the  ship  they 
knew  what  was  to  be  done  on  such  voyages, 

87 

5.  If  the  risk  be  altered  by  the  fault  of  the 
master  or  owner,  the  underwriters  are  not  lia- 
ble. But  if  the  master  vary  the  risk,  "ex 
justa  causa,"  the  liability  of  the  underwriters 
continue,  87 

6.  The  master  is  agent  for  the  freighter  as 
well  as  the  owner,  1 14 

7.  The  master  has  an  implied  authority 
both  from  the  underwriter  and  the  assured,  to 
do  the  best  he  can  for  all  concerned,  114 

8.  The  master  must  by  law  take  on  board  a 
pilot  at  different  parts  of  the  voyage  when  re- 
quired of  him,  115 

9.  The  underwriters  are  not  discharged  by 
the  default  of  the  pilot  in  charge  of  the  ship, 
and  who  is  master  for  the  time  he  continues 
on  board,  117 

10.  By  the  provisions  of  the  Pilot  Act,  no 
underwriter  shall  be  discharged  for  reason  of 
no  pilot  being  on  board,  unless  it  be  proved 
that  the  want  of  a  pilot  shall  have  arisen  from 
any  refusal  to  take  a  pilot,  or  from  the  wilful 
neglect  of  the  master  in  not  heaving  to,  or 


466 


INDEX. 


using  all  practical  means  to  procure  one  con- 
sistently with  the  safety  of  the  ship,  118 

11.  If  a  ship  sail  from  a  port  where  there 
is  an  establishment  of  pilots,  and  the  nature 
of  the  navigation  requires  one,  the  master 
must  take  one,  119 

12.  So  if  in  the  course  of  her  voyage  the 
master  arrives  at  a  port  or  place  where  a  pilot 
is  necessary,  he  ought  not  to  dismiss  him  till 
the  necessity  has  ceased,  119 

13.  But  if  a  vessel  sail  to  a  port,  where  the 
establishment  is  such  that  it  is  not  always  pos- 
sible to  procure  the  assistance  of  a  pilot  before 
the  ship  enters  into  the  difficult  part  of  the 
navigation,  then  as  the  law  compels  no  one  to 
perform  impossibilities,  all  it  can  require  in 
such  case  is,  that  the  master  use  all  reasona- 
ble efforts  to  obtain  one,  119,  120 

14.  In  a  general  average  it  is  the  duty  of 
the  master,  if  the  ship  ride  out  the  storm  and 
arrive  at  its  own  port,  or  port  of  safety,  to  make 
regular  protests,  and  swear,  with  which  part 
of  the  crew  must  join,  that  the  goods  were 
thrown  overboard  for  no  other  cause,  but  for 
the  safety  of  the  ship,  500 

MORTGAGOR. 

A  mortgagor  of  a  ship  who  is  also  master, 
is  considered  still  owner,  in  order  to  disable 
him  to  commit  an  act  of  barratry,  342 

NON-COMPLIANCE  WITH  WARRAN- 
TIES. 

1 .  It  is  a  clear  and  first  principle  of  the  law 
of  insurance,  that  where  a  thing  is  warranted 
to  be  of  a  particular  nature,  or  description,  it 
must  be  such  as  it  was  stated  to  be.  It  is  no 
matter  whether  it  be  material  or  not ;  the  only 
question  is,  "is  this  the  thing  de  facto,^^  that 
I  have  signed  1  663 

2.  Ship  "  warranted  well  on  a  particular 
day,"  insured,  "lost  or  not  lost,"  the  policy 
was  underwrote  at  between  one  and  three 
o'clock  in  the  afternoon,  the  ship  was  lost  at 
eight  in  the  morning  of  the  same  day,  the  war- 
ranty is  complied  with  if  the  ship  is  safe  at 
any  part  of  that  day,  663 

3.  Distinction  between  a  warranty  or  con- 
dition which  makes  part  of  a  written  policy, 
and  a  representation  of  the  case,  664 

4.  In  Older  to  make  written  instructions 
binding  as  a  warranty,  they  must  appear  on 
the  face  of  the  policy,  664 

5.  Warranty  as  to  the  time  of  sailing,  670 

6.  Where  a  ship  warranted  to  sail  on  or 
before  the  26th  .Tuly,  free  from  capture,  and 
restraint  and  detainments  of  kings,  &c.  The 
ship  was  ready  to  sail  before  the  26lh  July,  if 
she  had  not  been  detained  by  order  of  the 
governor.  Held  that  the  warranty  was  posi- 
tive and  express  that  the  ship  should  depart  on 
or  before  that  day,  671 


7.  If  a  ship  be  warranted  to  sail  after  a  par- 
ticular day,  and  she  sail  before  that  day,  the 
policy  is  void,  671 

8.  If  a  ship  is  warranted  to  sail  on  before 
a  particular  day,  if  she  sails  from  her  port  of 
loading  with  all  her  cargo  and  clearances  on 
board  before  the  day,  to  the  usual  place  of 
rendezvous  at  another  part  of  the  island,  for  the 
sake  of  joining  convoy,  it  is  a  compliance  with 
the  warranty,  though  she  be  afterwards  de- 
tained by  an  embargo  beyond  the  day,        672 

9.  It  does  not  signify  what  was  the  cause 
which  prevented  the  ship  from  sailing;  but  if 
she  did  not  sail  on  or  before  the  day  required, 
the  policy  is  void,  675 

10.  But  if  the  ship  breaks  ground,  and  is 
fairly  under  sail  on  the  day  required,  and  after- 
wards puts  back  from  stress  of  weather,  or  ap- 
prehension from  an  enemy,  or  is  put  under  an 
embargo,  though  she  has  gone  ever  so  little 
way,  it  is  still  a  beginning  to  sail,  675 

1 1.  But  where  the  warranty  is  to  depart  on 
or  before  a  given  day,  the  ship  must  be  actu- 
ally out  of  port,  and  it  is  not  sufficient  that 
she  has  broke  ground  to  satisfy  a  "warranty 
to  sail,"  683 

12.  At  the  time  of  a  ship's  sailing,  she 
must  have  every  thing  ready  for  the  perform- 
ance of  the  voyage,  and  nothing  remaining  to 
be  done  afterwards,  684 

13.  Secondly, — Warranty  to  sail  with  con- 
voy, 693 

14.  This  means  sailing  under  the  protec- 
tion of  ships  of  force  appointed  by  govern- 
ment, in  time  of  war,  to  sail  with  merchant- 
men from  their  port  of  discharge  to  the  place 
of  their  destination,  693 

15.  If  a  ship  do  not  sail  with  a  convoy 
appointed  by  the  government  of  the  country 
this  is  not  a  sailing  within  the  terms  of  the 
policy,  694 

16.  Sailing  instructions  from  the  comman- 
der of  the  convoy  are  necessary,  696 

17.  To  "depart  with  convoy,"  means  to 
sail  with  convoy  throughout  the  whole  of  the 
voyage,  698 

18.  A  ship  joins  convoy,  but  by  stress  of 
weather  is  unable  to  get  sailing  instructions; 
this  was  held  to  be  nevertheless  a  departing 
with  convoy,  700 

19.  Where,  by  the  neglect  of  the  ship  in- 
sured, she  failed  to  sail  with  convoy,  the  un- 
derwriters were  discharged,  702 

20.  The  warranty  is  to  be  construed  with 
reference  to  the  usage  of  trade  and  the  orders 
of  government,  702 

21.  Thirdly, — Warranty  that  the  ship  or 
goods  are  neutral  property,  704 

22.  Policy  on  goods  "warranted  neutral 
ship  and  property."  The  ship  and  goods 
were  lost  by  bad  weather,  but  the  ship  at  the 
time  she  was  lost,  was  not  neutral  property. 
Held  that  the  contract  was  void,  704 

23.  If  the  ship  or  property  are  warranted 


INDEX. 


467 


neutral,  it  is  suflicient  if  they  are  so  when  the 
risk  commences.  'J'he  assured  does  not  war- 
rant they  shall  continue  so  during  the  voy- 
age, 705 

24.  The  question  how  far  the  Courts  of 
Law  in  this  country,  consider  the  sentence  of 
foreign  Courts  conclusive  evidence  that  the 
property  was  not  neutral,  707 

2.5.  It  has  been  the  constant  usage  that  the 
tribunals  of  the  law  of  nations  should  exercise 
their  functions  within  the  belligerent  country, 

709 

26.  The  principles  laid  down  in  the  Court 
of  Admiralty  in  this  countr}'  are  agreeable 
to  the  decisions  of  the  Courts  of  Law  upon 
the  subject,  710 

27.  Where  a  sentence  was  pronounced  by 
a  belligerent,  on  neutral  territory,  it  was  held 
void,  711 

28.  But  if  it  appears  beyond  doubt  that 
the  sentence  proceeded  on  the  ground  of  the 
property  not  being  neutral,  it  is  conclusive 
evidence  against  the  assured,  that  he  has  not 
complied  with  the  warranty,  713 

29.  Where  a  ship  was  condemned  gene- 
rally as  "  good  and  lawful  prize,"  it  was  held 
conclusive  to  falsify  the  warranty,  that  the 
goods  were  neutral,  715 

30.  The  sentence  is  conclusive  only  as  to 
the  points  it  professes  to  decide,  717 

31.  If  no  leave  is  given  to  a  ship  to  carry 
simulated  papers,  and  the  ship  is  condemned 
for  carrying  them,  the  underwriters  are  dis- 
charged.    Otherwise  if  leave  be  given,     718 

32.  Where  a  sentence  went  upon  a  French 
ordinance,  and  condemned  a  Dutch  ship  be- 
cause she  had  an  English  supercargo  on 
board,  (being  an  enerny,)  this  sentence  was 
held  to  be  illegal  and  not  conclusive  against 
the  warranty,  718 

33.  So,  where  a  ship  was  condemned  be- 
cause the  captain  was  "  an  enemy"  and  no- 
thing else,  the  sentence  was  held  not  to  be 
conclusive  to  falsify  the  warranty,  719 

34.  Courts  of  Admiralty  proceed  on  the 
"law  of  nations,"  and  such  treaties  as  par- 
ticular states  have  agreed  shall  be  engrafted 
on  that  law.  But  no  one  state  can  add  to 
the  "law  of  nations,"  an  arbitrary  ordinance 
of  its  own  without  the  concurrence  of  other 
states,  72 1 

35.  A  ship  belonging  to  a  state  in  amity 
with  a  belligerent,  should  be  furnished  with 
such  documents  as  have,  by  treaty,  being 
agreed  on,  to  shew  her  character.  But  no 
ship  is  required  to  be  furnished  with  every 
document  required  by  the  ordinances  only  of  a 
belligerent  power,  723 

36.  Where  a  ship  warranted  Swedish  is 
captured  by  the  French,  and  condemned. 
The  Court  of  Prize,  after  stating  the  princi- 
pal question  to  be,  whether  the  ship  and  cargo 
were  enemy's  property,  condemns  both  as 
good  prize,  without  any  express  adjudication 


as  to  the  property.  Held,  that  this  sentence 
must  be  taken  to  have  proceeded  on  the 
ground  of  enemy's  properly,  and  to  be  con- 
clusive to  falsify  the  warranty,  729 

37.  A  sentence  of  a  Court  of  Admiralty 
proceeding  "mrem,"  is  conclusive  and  bind- 
ing upon  all  the  world,  733 

38.  The  party  who  sets  up  the  sentence  is 
not  obliged  to  shew  that  it  proceeded  on  the 
ground  of  enemy's  property,  but  it  lies  on  the 
other  party  who  objects  to  it,  to  shew  that  it 
proceeded  on  some  other  ground,  733 

39.  A  sentence  of  a  Court  of  Admiralty  is 
conclusive  as  to  all  it  professes  to  decide,  736 

40.  Finally  settled  by  the  House  of  Lords, 
that  "the  sentences  of  foreign  Courts  of  com- 
petent jurisdiction  to  decide  questions  of  prize, 
are  of  conclusive  evidence  in  actions  on  poli- 
cies of  insurance,  on  every  subject  within  the 
jurisdiction  of  the  Court,  and  in  which  tliey 
profess  to  decide  judicially,"  738 

41.  But  the  Court  must  distinctly  decide 
the   point,  in  order  to  affect  a  warranty  or 
representation  in  a  policy,  and  it  is  not  to  be    i 
collected  by  inference,  739 

42.  Where  a  foreign  Court  of  Admiralty 
alleges  reasons  for  the  sentence,  from  which  it 
appears  that  it  proceeded  on  other  grounds 
than  being  enemy's  property,  the  sentence  is 
not  conclusive  against  the  warranty  of  neu- 
trality, 741 

43.  Where  in  a  case  of  insurance  on 
"goods"  on  board  the  ship  George,  it  be- 
came the  principal  question  in  the  case, 
whether  a  sentence  of  condemnation  in  the 
Prize  Court  of  Monte  Video,  was  to  be  re- 
ceived as  conclusive  evidence  of  the  fact,  that 
the  ship  was  captured  in  attempting  to  break 
a  blockade;  held,  that  as  it  was  not  possible 
safely  to  infer  from  the  terms  of  the  sentence, 
that  the  precise  ground  of  the  sentence  was 
the  attempt  to  break  the  blockade,  that  the 
sentence  was  expressed  with  so  much  doubt 
and  ambiguity  as  to  the  real  ground  on  which 
it  proceeded,  that  it  was  not  conclusive  evi- 
dence of  the  captain's  having  attempted  to 
break  the  blockade ;  and  the  assured  recovered, 

741 

44.  The  right  of  visiting  and  searching 
merchant  ships  upon  the  high  seas,  is  an  in- 
contestible  right  of  the  lawfully  commissioned 
cruisers  of  a  belligerent  nation,  747 

PERILS  OF  THE  SEA. 

1.  Every  loss  which  happens  to  a  ship  by 
the  immediate  act  of  God  is  a  loss  by  a  "peril 
of  the  sea,"  270 

2.  Where  a  ship  was  driven  on  an  ene- 
my's coast  by  a  gale  of  wind,  and  is  captured, 
and  not  damaged  by  the  wind,  this  is  a  loss 
by  "capture,"  and  not  a  loss  by  the  "perils 
of  the  sea,  270 


468 


INDEX. 


3.  Where  a  ship  went  on  shore,  in  conse- 
quence of  two  sailors  being  prevented  liy  a 
pressgang  from  casting  off  a  rope,  as  they  had 
been  ordered,  held  to  be  a  loss  by  "peril  of 
the  sea,"  270 

4.  Where  a  ship  warranted  free  of  Ameri- 
can condemnation,  slipped  away  in  the  night, 
and  was  afterwards,  by  the  ice,  tide,  and 
wind,  driven  on  shore,  and  ultimately  con- 
demned for  breach  of  the  embargo,  the  under- 
writers were  discharged,  271 

5.  Where  an  insurance  was  made  on  goods 
on  board  a  ship  "warranted  free  from  cap- 
ture and  seizure,"  and  the  ship  was  stranded 
on  a  shoal,  and  was  lost ;  but,  whilst  she  lay 
on  the  sand,  she  was  seized  by  the  commander 
of  the  place,  and  her  goods  were  confiscated 
by  him,  this  was  held  to  be  a  loss  by  "the 
perils  of  the  sea,"  271 

6.  And  where  there  was  an  insurance  on 
goods,  and  where  the  ship  was  actually 
wrecked,  part  of  the  goods  lost  and  part  got 
on  shore,  where  they  were  plundered  and  de- 
stroyed by  the  inhabitants,  this  was  held  to 
be  a  loss  by  "  perils  of  the  sea,"  271 

7.  And  where  a  ship  had  sprung  a  leak, 
and  the  captain,  with  the  hope  of  saving  part 
of  the  cargo,  had  run  her  ashore,  where  ulti- 
mately she  had  gone  to  pieces,  it  was  held  to 
be  a  "peril  of  the  sea,"  272 

8.  But  the  loss  must  have  been  proved  to 
have  been  occasioned  immediately  by  one  of 
the  perils  insured  against,  and  where  a  decla- 
ration in  an  insurance  on  slaves  stated,  that 
"by  perils  of  the  sea,  contrary  winds,  cur- 
rents," &c.,  the  voyage  was  retarded  so 
much  that  there  was  no  water  remaining  for 
the  slaves,  some  of  whom  perished  in  conse- 
quence, and  it  was  proved  at  the  trial  that  the 
voyage  was  delayed  by  the  fact  of  the  master 
missing  his  port,  this  was  held  not  to  support 
the  allegation  in  the  declaration,  "that  the 
loss  happened  by  perils  of  the  sea,"  272,  273 

9.  A  loss  by  collision  is  a  loss  by  "peril  of 
the  sea,"  273 

10.  Ship  sunk  at  sea,  by  being  fired  at,  by 
mistaking  her  for  an  enemy,  is  a  loss  by 
"peril  of  the  sea,"  or,  if  not,  at  least  comes 
under  the  general  words  "all  other  perils," 
«Scc.,  in  the  policy,  275 

11.  Where  a  vessel  was  ordered  into  a  dry 
harbour,  the  bed  of  which  was  hard  and  un- 
even, and,  on  tide  having  left  her,  she  re- 
ceived damage  by  taking  the  ground,  held  to 
be  a  loss  by  "  peril  of  the  sea,"  277 

All  oTHF.n  Perils,  &c. 
Set  Jettison. 

12.  The  effect  of  these  general  words  in 
the  policy,  248 

13.  They  are  to  be  restrained  in  construc- 
tion to  perils  of  the  same  kind  to  those  in- 
serted in  the  policy,  349 


PILOT. 

See  Ship,  and  Master  of  Ship. 

PIRATES,  ROVERS,  THIEVES. 

I.   Pirates. 

Captures  by  pirates  as  between  the  assured 
and  assurer,  are  upon  the  same  footing  as 
captures  by  an  enemy,  303 

II.   Rovers  and  Tuietes. 

1.  If  the  thieves  be  on  board,  the  master  of 

the  ship  is  to  answer  for  the  loss,  and  to  make 
it  good,  according  to  Malyne;  and  the  as- 
surers arc  not  to  be  charged  with  such  loss ; 
for  he  supposes  that  the  word  "thieves," 
mean  "assailing  thieves,"  in  the  policy,  and 
their  being  coupled  with  the  term  "  rovers," 
by  the  maxim  of  "  nuscUur  a  sociis"  he  seems 
to  be  right,  303 

2.  Roccus  is  of  the  same  opinion,         304 

3.  The  underwriters  are  liable  for  a  robbery 
of  goods  from  without,  for  thieves  are  a  "peril" 
expressly  insured  against  by  them,  304 

POLICY,  CONSTRUCTION  OF. 

1.  The  immediate  and  not  a  remote  cause 
of  the  loss  is  looked  to  by  the  Court  in  con- 
struing a  policy  :  and  if  this  be  covered  by  the 
terms  expressed  in  the  policy,  they  will  hold 
the  underwriters  liable,  although  the  loss  may 
be  attributable,  in  the  first  instance,  to  a  re- 
mote cause  not  covered  by  the  policy,         268 

2.  It  is  a  maxim  of  the  law  of  marine  in- 
surance, that  the  assured,  having  provided  a 
complete  crew  and  master  of  competent  know- 
ledge at  the  commencement  of  the  voyage, 
makes  no  warranty  that  they  shall  do  their 
duty  during  the  continuance  of  it;  nor  are  the 
underwriters  exempted  from  their  liability  in 
case  of  a  loss  arising  immediately  from  one  of 
the  perils  insured  against,  although  remotely 
owing  to  the  neghgence  of  the  master  and 
crew,  269 

3.  The  Courts,  in  putting  a  construction 
upon  policies  will  always  be  guided  by  the 
custom  and  usage  of  trade,  197 

4.  In  all  mercantile  transactions  the  great 
object  should  be  certainty,  and  therefore  it  is 
of  more  consequence  that  a  rule  should  be  cer- 
tain, than  whether  the  rule  is  established  the 
one  way  or  the  other,  because  speculators  in 
trade  then  know  what  ground  to  go  upon,  per 
Lord  Mansfield,  in  Vallejo  v.  Wheeler,  Cowp. 
153,  323 

5.  And  by  Mr.  Justice  Willes,  in  Lockyer 
V.  Offley,  1  T.  R.,  252,  329 

OF  THE  PROCEEDINGS  IN  THE 
ACTION. 

1.  The  relief,  which  by  the  law  of  this 
country  is  given  to  either  party  to  the  contract 
of  assurance,  is  generally  by  an  action  at  law, 

783 


INDEX. 


469 


2.  There  are  some  cases  where  the  parties 
may  get  relief  in  equity,  as  for  an  injunction 
to  stop  an  action  at  law,  784 

3.  A  court  of  equity  will  not  altera  policy 
in  the  absence  of  strong  proof  of  its  being  con- 
trary to  the  intent  of  the  parties,  784 

4.  But  where  a  policy  has  been  drawn  up, 
by  7Distake,  in  terms  which  are  not  conforma- 
ble to  the  real  intentions  of  the  parties,  the  in- 
strument may  he  rectified  in  a  court  of  equity 
by  the  slip  or  label,  78 

5.  At  common  law  a  policy  cannot  be  al- 
tered after  it  had  been  signed,  without  the 
consent  of  the  parties,  784 

6.  A  court  of  equity  will  give  relief  in  a 
case  where  there  is  a  suspicion  of  fraud  in 
the  assured,  and  in  such  cases  will  compel 
him,  on  oath,  to  make  a  full  disclosure  of  all 
the  circumstances  within  his  knowledge,  784 

7.  All  issues  on  policies  of  assurances  are 
tried  in  the  courts  of  common  law,  784 

8.  And  a  clause  in  a  policy  that  in  case  of 
a  dispute  it  should  be  referred,  is  no  bar  to  an 
action  at  law  where  there  has  been  no  refer- 
ence in  fact,  nor  is  depending,  784 

9.  The  remedy  against  the  two  old  incorpo- 
rated companies  is  by  debt  or  covenant,  and 
so  in  the  case  of  other  incorporated  compa- 
nies, 785 

10.  The  remedy  against  a  private  under- 
writer is  by  action  of  assumpsit,  786 

11.  Consolidation  of  actions.  The  rule: 
its  nature,  and  the  terms  on  which  it  is  usu- 
ally made,  786,  787 

12.  The  venue  may  be  changed,  unless 
the  policy  be  under  seal,  or  the  cause  of  action 
arise  out  of  the  realm,  789 

13.  The  declaration.  The  date  of  the  ex- 
ecution of  the  policy,  a  copy  of  which  is  in- 
serted therein,  789 

14.  The  stamp  required  by  law  on  the 
policy,  789 

15.  The  plea,  796 

16.  Payment  of  money  into  Court,  and 
the  proceedings  of  the  plaintilf  after,        796 

17.  What  the  plea  of  payment  into  Court 
admits  1  '  796 

18.  The  issue,  803 

19.  Proof  of  the  defendants  subscription 
of  the  policy,  or  of  some  person  subscribing 
for  him  by  his  authority,  803 

20.  The  plaintiff  must  prove  his  interest 
in  the  subject-matter,  by  production  of  bill  of 
lading,  &c.,  804 

21.  Proof  of  the  ownership  of  the  ship, 
«&c ,  805 

22.  The  plaintiff  must  prove  that  the  loss 
happened  as  is  averred  in  the  declaration, 

809,  811  ' 

OF  RE-ASSURANCE  AND  DOUBLE 
ASSURANCE. 


I.  Re-Assuraxce, 


773 


1.  Re-assurance,  as  understood  by  the  law 
of  England,  may  be  said  to  be  a  contract 
which  the  first  assurer  enters  into,  in  order  to 
relieve  himself  from  those  risks  which  he  has 
incautiously  taken  by  throwing  them  upon 
other  assurers,  who  are  called  re-assurers, 

773 

2.  By  sect.  4  of  19  Geo.  2,  c.  37,  it  is 
unlawful  to  make  re-assurance,  unless  the 
assurer  be  insolvent,  become  bankrupt,  or 
die,  773 

II.    Double  AssunA:scF,,  775 

1 .  Where  a  person  has  made  a  double  as- 
surance, he  may  recover  the  whole  sum  upon 
the  first  action,  and  leave  the  defendant  to 
recover  a  rateable  satisfaction  from  the  others, 

775 

2.  Where  an  assured  had  recovered  against 
the  underwriters  of  the  second  insurance,  the 
latter  were  held  entitled  to  recover  against 
the  underwriters  on  the  first  policy  for  their 
contribution,  776 

3.  Where  there  are  several  insurers  they 
shall  all  contribute  pro  rata,  779 

RETURN  OF  PREMIUM. 

1 .  Whether  there  is  to  be  a  return  of  pre- 
mium in  case  of  fraud ;  see  ante,  in  article 
"Fraud  in  I'olicies,"  625 

2.  Where  the  interest  turns  out  to  be  less 
than  the  amount  insured,  there  shall  be  a  re- 
turn of  the  overplus  premium,  751 

3.  Where  a  policy  was  made  on  goods  on 
behalf  of  the  plaintifi'  by  an  agent,  and  a  pre- 
mium paid,  and  the  policy  was  void,  as  no 
goods  were  ever  on  board,  it  was  held  that 
the  plaintiff  might  recover  the  premium  from 
the  underwriter,  in  an  action  of  money  had 
and  received  to  his  use,  752 

4.  The  parties  often  agree  that  there  shall 
be  a  return  of  part  of  the  premium  upon  the 
happening  of  a  certain  event:  for  instance, 
if  the  ship  sail  with  convoy  for  the  voyage, 
and  arrive  safe,  752 

5.  Goods  are  insured  from  Grenada  to  Lon- 
don at  eighteen  guineas  per  cent.,  "to  return 
eight  per  cent,  if  the  ship  sails  with  convoy, 
and  arrives."  The  ship  sailed  with  the  con- 
voy, which  left  her,  as  usual,  at  the  Downs  ; 
after  which  an  average  loss  happened,  but 
the  ship  arrived  safe  at  London.  Held  that 
the  underwriters  were  liable  to  return  eight 
per  cent,  on  the  value  qf  the  goods  in  the 
policy,  notwithstanding  the  average  loss,  753 

6.  On  a  policy  on  freight,  "  to  return  ten 
per  cent,  if  the  ship  sail  with  convoy  and 
arrive."  The  ship  sailed  with  convoy,  was 
captured  and  recaptured.  The  assured  are 
entitled  to  a  return  of  premium,  although  the 
underwriters  were  obliged  to  pay  salvage,  755 

7.  Where  several  policies  are  made,  and 
the  interest  turns  out  less  than  the  amount 
insured  in  the  whole,  there  must  be  a  rate- 


470 


INDEX. 


able  return  of  premium  upon  all  the  policies, 

756 

8.  But  where  there  were  five  policies  made 
on  a  cargo  of  cotton,  then  at  sea,  on  the  12th 
April,  which  did  not  amount  together  to  the 
value  of  the  subject-matter  insured ;  and  on 
the  13th  of  April,  news  having  arrived  of  the 
vessel's  safety  on  that  day,  six  other  policies 
were  bond  fide  made,  the  amount  of  which, 
together  with  the  former,  exceeded  the  value 
of  the  subject-matter  insured  ;  it  was  held  that 
the  assured  were  entitled  to  a  return  of  pre- 
mium on  the  amount  of  the  over-insurance, 
taking  the  account  from  the  whole  oi  the  po- 
licies which  had  been  made,  and  this  was  to 
be  paid  rateably  by  the  underwriters  on  the 
policies  of  the  13th,  but  that  the  underwriters 
on  those  of  the  12th  were  to  be  exempted,  757 

9.  Where  the  risk  has  not  been  run,  either 
owing  to  the  fault,  or  the  pleasure  or  will  of 
the  assured,  or  to  any  other  cause,  the  pre- 
mium shall  be  returned,  757 

10.  Where  the  risk  has  once  commenced, 
there  shall  be  no  apportionment  or  return  of 
premium,  758 

11.  But  where  a  voyage  from  London  to 
Halifax  was  insured  on  the  contingency  of 
sailing  from  Portsmouth  with  a  convoy,  (par- 
ticularly named)  which  contingency  did  not 
happen,  it  was  held  that  the  assurer  was  en- 
titled to  retain  only  a  proportional  part  of  the 
premium,  759 

12.  Where  an  insurance  was  made  by  an 
agent  here  on  goods,  "  at  and  from  a  port  in 
Russia  to  London,"  on  behalf  of  a  Russian 
subject  abroad,  which,  in  fact,  was  made 
after  the  commencement  of  hostilities  by  Rus- 
sia against  this  country,  but  before  the  know- 
ledge of  it  here,  and  after  the  ship  had  sailed 
and  been  captured,  it  was  held,  that  the  voy- 
age being  void  in  the  commencement,  that 
the  plaintiffs  were  to  recover  back  the  pre- 
mium, inasmuch  as  the  insurance  was  made 
without  any  consciousness  of  its  illegality  at 
the  time,  759 

13.  But  where  an  insurance  was  made 
previous  to  the  commencement  of  hostilities, 
and  was  held  to  be  void  on  account  of  the 
capture  being  made  by  tlie  King's  forces,  the 
underwriter  being  a  resident  subject  of  his 
Majesty  in  this  country,  it  was  held  that  the 
plaintiff  could  not  recover  the  premium  back, 
as  the  contract  was  at  the  time  it  was  made 
legal  for  all  losses,  except  loss  by  British  cap- 
ture, 760 

14.  Where  the  plaintiff  had  made  an  insu- 
rance on  behalf  of  captors,  which  was  void 
for  want  of  interest  in  the  captors,  as  there 
was  no  illegality  in  the  voyage  or  insurance, 
and  as  the  resistance  of  the  underwriters  to 
the  claim  under  the  policy  proceeded  on  the 
ground  that  there  was  no  risk,  held  that  the 
plaintiff  was  entitled  to  a  return  of  the  pre- 
mium, 761 


15.  Where  a  premium  had  been  paid  to 
cover  a  trading  with  the  enemy,  though  the 
insurance  was  void,  the  premium  could  not 
be  recovered  back,  763 

16.  Where  an  insurance  was  made  in  vio- 
lation of  the  Naviijation  Acts,  it  was  held 
that  the  premium  could  not  be  recovered  back, 

764 

17.  But  where  the  policy  is  void,  on  ac- 
count of  the  subject-matter  not  being  insur- 
able, the  assured  may  recover  the  premium, 

764 

18.  Where  a  policy  was  vacated  by  a  de- 
viation in  the  voyage,  as  the  insurance  was 
"  at  and  from"  the  port  of  departure,  the  risk 
had  commenced,  and  there  could  be  no  return 
of  premium,  764 

19.  Where  the  policy  was  "at  and  from 
Jamaica  to  London,  warranted  to  depart  with 
convoy  for  the  voyage,  and  to  sail  on  or  be- 
fore the  1st  August,"  the  ship  sailed  on  the 
31st,  without  convoy,  and  the  jury  found 
that  in  such  cases  there  was  a  usage  to  return 
the  premium,  deducting  one-half  per  cent. 
Held  that  the  express  usage  took  the  case  out 
of  the  general  rule,  771 

SHIP. 

See  Master. 

1.  The  husband  of  a  ship  has  no  right  to 
insure  for  any  part-owner,  without  his  parti- 
cular direction ;  nor  for  all  the  owners  without 
their  general  direction,  9 

2.  The  name  of  the  ship  should  be  inserted 
in  the  policy,  80 

3.  Sometimes  there  are  insurances  upon 
"ship  or  .ships,"  expected  from  a  particular 
place,  82 

4.  A  mistake  in  the  name  of  the  ship  will 
not  vitiate  the  policy  if  the  identity  be  proved, 

81 

5.  The  "boat"  of  the  ship  in  some  voy- 
ages is  usually  carried  on  the  outside,  slung 
on  the  quarters,  83 

6.  The  rigging  and  tackle  of  a  ship  are 
put  on  shore  during  a  repair,  by  the  usual 
course  of  the  voyage,  and  burnt  l)y  accident, 
the  underwriters  are  liable,  85 

7.  If  the  risk  be  varied  by  the  fault  of  the 
owner  or  master  of  the  "ship,"  the  under- 
writers are  discharged,  86 

8.  Whatever  is  usually  done  by  every  ship, 
in  a  particular  voyage,  is  understood  to  be 
referred  to  by  every  policy,  and  to  make  a 
part  of  it  as  if  it  had  been  expressed,  87 

9.  Extraordinary  wages  paid  to  the  sea- 
men, and  provisions  expended  during  the  de- 
tention of  a  ship,  are  not  protected  by  a  po- 
licy on  "ship,"  89 

10.  Neither  can  the  assured  recover  for 
wages,  provisions,  or  demurrage,  during  the 
ship's  stay  for  repair,  or  detention  of  a  for- 


INDEX. 


471 


eign  power,  on  a  policy  on  «*ship  and  goods," 

89 

11.  But  where  provisions  were  sent  out  in 
a  China  and  East  Indian  ship  for  the  crew, 
and  while  the  ship  was  lying  off  Bank-saul 
Island  to  he  refitted,  and  the  stores  and  pro- 
visions were  taken,  as  usual  in  that  voyage, 
and  put  into  a  warehouse  where  they  were  ac- 
cidentally consumed  by  fire,  it  was  iield,  that 
the  assured  could  recover  the  loss  of  the  pro- 
visions destroyed  by  a  peril  insured  against, 
and  not  consumed  by  the  crew,  under  the 
terms  "ship  and  furniture,"  91 

12.  The  term  "good"  applied  to  the  ship, 
means  in  the  legal  sense  of  the  term,  the 
seaworthiness,  of  the  vessel.  And  it  is  of  the 
first  importance  and  of  the  essence  of  this 
contract,  91 

13.  There  is  an  implied  warranty  on  the 
part  of  the  assured,  that  the  ship  when  she 
«ails,  shall  be  "good,"  that  is  "seaworthy" 
for  the  voyage,  96 

14.  Where  a  ship  was  made  seaworthy  as 
the  assured  and  shipbuilder  thought,  but  hav- 
ing sailed  in  bad  weather  to  Portsmouth  from 
the  Thames,  and  being  very  leaky,  she  was 
condemned  as  not  fit  to  proceed.  Held,  how- 
ever innocent  the  assured  might  be,  the  un- 
dervs'riters  were  discharged,  105 

15.  If  a  ship  become  leaky  and  unable  to 
proceed  soon  after  the  commencement  of  the 
risk,  without  any  visible  cause,  the  presump- 
tion is  that  she  was  not  seaworthy  when  she 
sailed,  106 

16.  A  ship  to  be  seaworthy,  must  be  fur- 
nished with  ground  tackling  sufficient  to  en- 
counter the  ordinary  perils  of  the  sea,       107 

17.  The  seaworthiness  of  a  ship  is  to  be 
taken  with  a  reference  to  her  situation  in  dif- 
ferent periods  of  the  voyage,  108 

18.  There  is  a  seaworthiness  for  port,  and 
there  is  a  seaworthiness  for  the  voyage,      1 10 

19.  The  vessel  must  also  have  a  sufficient 
crew  and  captain  of  competent  skill,  1 10 

20.  If  an  insured  ship  is  to  be  navigated  in 
a  particular  manner  described  by  statute,  if 
the  requisitions  of  the  statute  are  not  strictly 
complied  with,  the  insurance  is  void,         120 

21.  The  implied  warrantry  of  a  ship  being 
seaworthy  for  the  voyage  insured,  is  not  con- 
fined to  the  sufficiency  of  the  hull,  but  it  ex- 
tends to  the  soundness  of  the  sails  and  rigging ; 
and  a  ship  if  "warranted  to  sail  with  convoy," 
should  be  supplied  with  such  sails  as  will  en- 
able her  to  keep  up  with  the  convoy :  because 
a  "warranty  to  sail  with  convoy,"  implies  the 
necessity  not  only  of  setting  sail  together,  but 
keeping  up  with  it,  in  order  to  give  the  under- 
writers the  protection  to  the  end  of  the  con- 
voy's usual  attendance,  122 

22.  By  an  implied  warranty  every  ship  in- 
sured must  be  seaworthy  at  the  commence- 
ment of  the  risk,  but  the  assured  makes  no 
warranty  that  she  shall  continue  so,  123 

Vol.  VII.— G  2 


23.  Neither  does  the  assured,  after  having 
provided  a  competent  master,  and  sufficient 
crew  for  the  voyage,  warrant  that  they  shall 
do  their  duty  during  the  continuation  of  it, 

123 

24.  Neither  are  the  underwriters  discharg- 
ed from  their  liability,  in  the  case  of  a  loss 
immediately  arising  from  one  of  the  perils  in- 
sured against,  though  remotely  owing  to  the 
neglect  and  fault  of  the  master  or  crew,  1 23, 

124,  125,  126, 

25.  If  a  ship  sets  sail  on  her  voyage  in  an 
apparent  seaworthy  condition,  and  afterwards, 
before  any  loss  happens,  she  is  found  to  be  too 
heavily  laden  so  as  to  render  her  unseaworthy, 
and  the  fault  is  remedied  and  she  proceed  on 
her  voyage  in  a  seaworthy  condition,  the  un- 
derwriters are  liable  to  a  subsequent  loss,  127 

26.  The  assured  cannot  change  the  ship 
previous  to  the  voyage  for  another,  without 
mentioning  it  to  the  underwriters,  139 

27.  Whether  the  assured  may  in  the  course 
of  the  voyage  if  the  original  vessel  is  lost, 
tranship  the  goods  in  another  vessel,  143 

28.  In  foreign  countries  it  is  expressed 
either  in  the  policies  or  ordinances,  that  "  the 
risk  of  the  underwriters  begin  the  moment  the 
goods  quit  the  shore."  But  in  this  country 
the  common  form  of  the  policy  used  is  differ- 
ent, viz:  "from  the  loading  on  board  the 
ship,"  but  there  are  exceptions  to  this  rule, 
particularly  with    Companies  of  Assurance, 

149 

29.  The  risk  on  the  body  of  the  ship  con- 
tinues till  the  ship  be  moored  twenty-four 
hours  at  anchor  in  good  safety,  150 

30.  Where  the  policy  is  "till  the  ship  be 
moored  at  anchor  twenty-four  hours  in  good 
safet)',"the  underwriters  are  not  liable  for  any 
loss  that  takes  place  after  that  time,  153 

31.  Where  a  ship  arrived  in  port  a  mere 
wreck,  and  was  obliged  to  be  lashed  to  a  hulk 
to  prevent  her  sinking,  held  it  was  a  total  loss, 

156 

32.  A  ship  being  moored  twenty-four  hours 
in  safety,  implies  the  opportunity  of  unloading 
and  discharging,  157 

33.  If  an  embargo  is  put  on  previous  to  a 
ship's  arrival  at  a  port,  she  cannot  be  said  to 
be  moored  in  safety,  157 

34.  Where  the  words  "at  and  from"  are 
used  in  the  policy,  the  risk  commences  at  the 
ship's  first  arrival  at  the  port.  But  if  there 
be  an  unreasonable  delay  at  the  port,  the  un- 
derwriters are  discharged,  176 

35.  Though  it  be  not  necessary  that  the 
ship  should  be  at  the  port  in  question  at  the 
time  of  making  the  insurance,  yet  there  must 
not  be  an  unreasonable  delay  in  her  arriving 
there,  177 

36.  When  a  policy  is  on  a  voyage  to  an 
island  having  several  ports,  the  risk  on  the 
outward  voyage  ceases  after  the  ship  has  been 
moored  at  the  first  port,  178 


472 


INDEX. 


37.  In  a  policy  "at  and  from  an  island," 
the  ship  is  protected  in  going  from  port  to 
port,  1 79 

38.  If  the  policy  be  on  '« goo''s,"  and  on 
the  ship  at  and  from  a  given  jilace,  bcgirming 
the  adventure  upon  the  loading  thereof  on 
board  of  the  ship,  (without  saying  where)  it 
will  not  cover  goods  shipped  elsewhere  than 
the  place  where  the  risk  commences,  or  "  the 
ship,"  though  they  be  the  goods  mentioned  in 
the  policy,  193 

39.  But  if  part  of  the  cargo  be  landed  and 
relandcd,  so  as  to  enable  the  whole  to  be  in- 
spected :  held  to  be  a  virtual  reloading  within 
the  terms  of  the  policy,  193 

40.  So,  if  a  policy  be  declared  to  be  in  con- 
tinuation of  former  policies,  goods  previously 
loaded  will  be  covered  by  it,  194 

41.  Where  a  policy  was  beginning  tlie  ad- 
venture upon  the  goods  from  the  loading  there- 
of on  board  wheresoever,  it  was  held  to  cover 
the  loading  wheresoever  it  took  place,        194 

42.  But  where  the  a.ssurcd  have,  by  the  ex- 
pressed terms  which  they  have  used  in  the 
policy,  confined  the  risk  to  the  goods  "from 
the  loading  thereof"  at  a  particular  ])lace,  the 
Court,  in  construing  the  policy,  will  be  guided 
by  the  express  terms  they  have  used,  19.) 

43.  Liberty  for  the  ship  to  touih  and  stay 
at  any  ports  and  places  whatsoever  without 
prejudice  to  the  insurance,  is  inserted  in  most 
of  the  policies  of  insurance  particularly  in 
those  on  voyages  to  distant  places,  such  as  the 
East  and  West  Indies,  the  continents  of  Ame- 
rica and  Africa,  and  round  the  Capes,  and  to 
China,  208 

44.  An  insurance  upon  an  Indian  voyage 
includes  the  "country  voyage"  by  the  usaue 
of  the  trade,  214 

45.  If  in  a  policy  on  an  Indian  voyage  there 
be  liberty  "to  touch,  stay,  and  trade,  at  any 
ports  or  places  whatsoever,"  this  covers  the 
risk  of  even  a  second  country  voyage,       216 

46.  Also  where  the  Hberty  was  only  "to 
touch,  and  stay,  at  any  poitor  place :"  by  the 
usasf  of  the  trade  this  covers  the  intermediate 


voyages, 


217 


47.  But  the  clause  giving  liberty  "to  touch, 
stay,  trade,"  &c.  is  to  be  understood  with  such 
restrictions  as  the  Courts  have  thought  neces- 
sary to  prevent  any  unfair  advantage  of  the 
general  terms  in  which  it  is  expressed.  It  is, 
therefore,  always  interpreted  as  subordinate  to 
the  voyage  insured,  which  is  the  principal  ob- 
ject of  the  contract;  and  in  cases  of  doubt  it 
must  be  understood  with  reference  to  the  laws 
of  commerce,  and  the  usage  of  the  particular 
trade,  217—226,  230 

Deviatioit  fkom  the  Voyage. 

48.  It  is  expected  that  a  ship  insured  for 
any  particular  voyage  does  at  once  proceed  to 
take  and  keep  (if  po.Sijible)  the  proper  route 


and  course  which,  according  to  seafaring  per- 
sons, is  acknowledged  to  be  the  best  and  the 
proper   one   to   perform  the  voyage  insured, 

230 

49.  But  if,  instead  of  keeping  the  proper 
course,  the  ship,  either  by  the  direction  of  the 
assured,  or  his  agent,  or  by  the  wilful  act  of 
the  master,  without  necessity  or  any  reasona- 
ble cause  alter  her  course  in  a  difiercnt  direc- 
tion, this  is  a  "deviation"  from  the  voyage, 
which  voids  the  insurance,  230 

50.  So,  also,  if  a  ship  is  at  aparticulai  port, 
and  is  represented  by  the  assured  to  the  under- 
writers as  being  bound  at  such  a  time  on  such 
a  voyage,  upon  which  an  insurance  is  made 
"at  and  from"  the  given  port,  if  by  sufficient 
proof  it  can  be  made  apparent  that  the  master 
by  the  directions  of  hi.s  owners,  or  by  his  own 
wilful  act,  has  prepared  himself  to  sail  on  a 
voyage  diU'ereiit  from  the  one  proposed  to  the 
underwriters,  and  insured  by  them,  and  she  be 
lost  in  port  before  she  even  sets  sail,  the  insu- 
rance is  vacated,  from  the  fact  of  the  prepara- 
tions of  the  tiiaster  tosailon  a  dilVerent  voyage 
tha)i  the  one  insured,  231,  232,  &c. 

51.  Where  the  master  of  a  ship  took  her 
out  of  her  course  on  a  smuggling  speculation 
of  his  own,  this  was  held  to  be  cleailv  a  devia- 
tion, 231,  232 

52.  Where  a  ship  puts  into  a  port  which 
she  had  no  liberty  by  tiie  policy  to  enter,  held 
to  be  a  deviation  from  the  voyage,  235 

53.  If  the  master  put  into  a  port  which  is 
not  usual,  or  stay  an  unusual  time,  it  is  a 
deviation,  235 

54.  Where  a  vessel  was  obliged  to  stay  to 
pay  sound  dues,  it  was  held  that  taking  in 
provender  there  was  not  a  deviation,  as  there 
was  no  delay  of  the  voyage,  237 

55.  Taking  in  goods  whilst  lying  for  con- 
voy, no  deviation,  no  delay  of  the  voyage  be- 
ing occasioned  thereby,  237 

56.  A  ship  having  liberty  to  put  into  one  port 
puts  into  another  equally  in  her  way :  this 
voids  the  policy,  though  neither  the  risk  or 
premium  would  have  been  greater,  237, 

238,  &c. 

57.  Where  several  places  are  mentioned  in 
a  policy,  the  ship  must  go  to  them  in  the  order 
in  which  they  are  named,  240 

58.  Where  a  deviation  has  once  taken 
place,  it  is  immaterial  for  how  long  it  may 
continue,  for  the  underwriter  is  discharged  the 
moment  it  takes  place,  243 

59.  Where  a  ship  in  the  night  time  cruised 
and  deviated  in  hopes  of  getting  a  prize  :  held, 
from  that  moment,  the  policy  was  discharged, 

244 

60.  But,  if  a  merchant  ship  carry  letters  of 
marque,  she  may  chase  an  enemy,  though  she 
may  not  cruise,  244 

61.  Where  a  license  is  given  to  deviate, 
the  Court  wdl  not  extend  the  meaning  beyond 
what  is  expressed  by  the  parties,  247 


INDEX. 


473 


62.  The  doctrine  of  deviation  extends  to 
policies  on  freight,  248 

63.  Where  the  deviation  arises  from  neces- 
sity, the  underwriter  is  not  discharged,      248 

64.  Going  into  a  port  to  refit  is  not  a  devia- 
tion, 250 

65.  Going  out  of  the  direct  course  to  avoid 
a  storm,  or  being  driven  out  of  the  direct 
course  by  stress  of  weather,  is  not  a  deviation, 

252 

66.  Where  a  plea  of  necessity,  by  the  act 
of  God,  is  set  up,  it  must  be  made  apparent 
that  there  was  no  default  of  the  assured  or 
master,  255 

67.  A  deviation  is  allowable,  if  done  to 
avoid  an  enemy,  or  to  seek  for  convoy,     256 

68.  If  a  ship  go  to  the  usual  place  of  ren- 
dezvous to  join  convo}',  though  out  of  the 
direct  course,  it  is  no  deviation,  258 

69.  A  ship  may  afford  assistance  to  a  ship 
in  distress,  without  being  guilty  of  a  devia- 
tion, 258 

70.  If  a  ship  be  insured  on  a  trading  voy- 
age, the  assured  must  carry  on  that  trade  with 
usual  and  reasonable  expedition,       259,  260  I 

71.  A  deviation  merely  contemplated,  but  i 
not  carried  into  effect,  is  no  deviation,       261  , 

72.  Where  a  ship  is  missing  and  not  heard 
of  in  a  reasonable  time,  it  is  by  law  presumed 
that  she  has  foundered  at  sea,  351 

73.  In  England,  there  is  no  regulation  or 
usage  of  merchants  fixing  a  time  within  which 
the  assured  may  demand  payment  for  a  loss  of 
a  ship,  in  case  of  no  account  being  heard  of 
her,  353 

74.  See  Ordinances  of  Spain  and  France 
on  this  Subject,  353 

75.  See  also  "The  Rota  of  Genoa"  upon 
this  point,  362 

STRANDING  OF  THE  SHIP. 

1.  What  shall  amount  to  the  stranding  of 
the  ship  within  the  meaning  of  the  memoran- 
dum, 458. 

2.  It  is  not  every  touching  or  striking  on 
a  fixed  body  in  the  sea  or  river,  that  will  con- 
stitute a  stranding.  The  ship  must  be  sta- 
tionary, 458 

3.  Where  a  ship  is  driven  on  shore  and 
remains  for  any  time  on  the  ground,  this  is  a 
stranding,  459 

4.  Where  a  ship  under  the  conduct  of  a 
pilot  was  fastened  at  the  pier  of  a  dock  and 
left  and  took  the  ground,  this  was  held  to  be  a 
stranding,  459 

5.  But  where  by  the  natural  course  of  the 
navigation  the  vessel,  by  the  flux  and  reflux 
of  the  tide,  would  be  left  on  the  ground,  this 
is  not  a  stranding,  460 

6.  Where  a  ship  in  the  course  of  her  voy- 
age was  compelled  to  put  into  a  tide  harbour, 
and  was  there  moored,  at  a  place  usual  for  ships 
of  her  burthen,  and  it  became  necessary  to 


fasten  her  by  tackle  to  posts  on  the  shore ;  the 
rope  which  fastened  her  not  being  of  sufficient 
strength  she  fell  over  on  her  side,  was  stove 
in,  and  greatly  injured.  It  was  held  that  this 
was  a  "stranding"  within  the  meaning  of  the 
policy,  46 1 

7.  And  where  a  ship  was  in  tide  harbour 
and  proceeded  to  discharge  her  cargo  at  a 
quay  on  the  side  of  it,  which  could  be  done 
at  high-water  only,  and  not  at  one  tide ;  at 
the  first  low  tide  the  vessel  grounded  on  the 
mud  ;  but  on  a  subsequent  ebb,  the  rope  which 
fastened  her  head  stretched,  and  the  wind 
blowing,  she  did  not  ground  entirely  on  the 
mud,  but  her  fore  part  got  on  a  bank  of 
stones,  and  the  vessel  having  strained,  some 
damage  was  sustained  by  the  cargo,  but  no 
lasting  injury  was  done  to  the  ship.  This 
was  held  to  amount  to  a  "stranding,''      462 

8.  Where  on  a  policy  on  "corn,"  the  memo- 
randum stated  that  the  underwriter  would  not 
be  liable  for  any  average,  unless  general,  or  the 
ship  be  stranded,  but  their  being  no  averment 
in  the  declaration  that  the  ship  was  stranded, 
the  assured  could  not  recover,  475,  476 

9.  If  the  ship  be  stranded,  that  destroys 
the  exception,  and  lets  in  the  general  words 
of  the  policy,  478 

10.  The  stranding  of  a  lighter,  by  which 
goods  from  the  ship  are  carried  to  the  shore, 
is  not  such  a  stranding  of  the  ship  v\'ithin  the 
terms  of  the  exception,  480 

11.  The  stranding  must  take  place  during 
the  continuance  of  the  risk,  and  where  the 
goods  which  had,  by  the  occurrence  of  cer- 
tain circumstances  been  landed  and  sold,  and 
the  stranding  took  place  afterwards,  though, 
during  the  original  voyage,  held  that  this  was 
not  such  a  stranding  as  would  let  in  the  gene- 
ral words  of  the  policy  as  to  those  goods,  480 

USAGE. 

1.  An  interest  in  expenses  incurred  by  the 
captain  for  the  use  of  a  ship,  for  which  he 
charged  respondentia  interest,  was  held  to  be 
protected  by  a  policy  on  "goods,  specie  and 
effects,"  on  the  ground  solely  of  the  usage  of 
the  Indian  trade,  18 

2.  The  master's  clothes  or  the  ship's  provi- 
sions, do  not  come  under  the  term  of  "goods," 
nor  goods  lashed  on  deck,  unless  sanctioned 
by  usage,  19 

3.  In  some  voyages  there  is  an  usage  to 
carry  the  "boat"  on  the  ship  and  slung  on 
the  quarters,  83 

4.  Usage  may  be  admissible  to  explain 
what  is  doubtful— it  is  never  admissible  to 
contradict  what  is  plain,  84 

5.  The  principle  upon  which  usage  may 
be  given  in  evidence  as  to  goods  lashed  on 
"deck,"  is,  that  they  are  not  in  the  place 
where  goods  are  usually  stowed.     And  the 


474 


INDEX. 


underwriter  is  entitled  to  have  notice  of  the 
fact,  or  of  the  nature  of  the  goods,  84 

6.  But  where  there  was  an  insurance 
"upon  the  ship  and  all  her  furniture  and 
apparel,  including  the  hoat,"  iind  evidence 
was  given  that  in  voyages  such  as  the  one 
in  question,  ships  invariably  carried  a  boat 
in  the  place  where  the  boat  in  question 
was  carried,  and  slung  as  this  boat  was 
slung — parol  evidence  will  not  be  admitted 
to  prove  that  underwriters  are  not  liable  for 
the  loss  of  a  boat  so  slung.  Inasmuch  as 
the  policy  imports  that  the  insurance  is  on 
the  whole  ship  and  all  its  furniture,  including 
the  boat,  without  any  restriction,  the  usage  is 
attempted  to  be  admitted  to  contradict  the 
express  terms  of  the  policy,  by  showing  that 
the  boat  by  usage,  is  to  be  excluded,  83 

7.  Whatever  is  usually  done  by  every  ship 
in  a  particular  voyage,  is  understood  to  be 
referred  to  by  every  policy,  and  to  make  a 
part  of  it  as  much  as  if  it  was  expressed,    87 

8.  The  Courts  of  law  in  putting  a  construc- 
tion upon  policies,  have  always  been  guided 
by  the  custom  and  usage  of  trade,  197 

9.  Policies  are  to  be  construed  largely  for 
the  benefit  of  trade,  201 

10.  Where  goods  were  insured  to  the  coast 
of  Iiabrador  till  safely  landed,  are  kept  on 
board  a  long  time  after  the  ship's  arrival — 
this  being  the  usage  of  the  trade  at  that  place, 
the  risk  continues,  203 

11.  Every  underwriter  is  presumed  to  be 
acquainted  with  the  practice  of  the  trade  he 
insured,  and  that  whether  it  is  recently  estab- 
lished or  not,  205 

12.  Evidence  of  the  practice  of  the  trade 
is  to  be  received :  and  the  underwriter  is 
bound  to  know  it,  206 

13.  A  ship  may  go  to  the  general  convoy 
at  the  risk  of  the  underwriters,  198 

14.  A  ship  insured  from  London  to  the 
East  Indies,  "warranted  to  sail  with  con- 
voy :"  the  warranty  is  to  be  construed  accord- 


ing to  the  usage  among  merchants,  that  is, 
from  such  place  as  convoys  are  to  be  had,  as 
the  Downs,  198 

15.  An  insurance  on  an  Indian  voyage  in- 
cludes the  "country  voyage"  by  the  usage  of 
the  trade,  214 

16.  So,  also,  where  the  liberty  was  only 
"to  touch  and  stay  at  any  port  or  place:"  by 
the  usage  of  the  trade  this  covers  the  inter- 
mediate voyages,  217 

17.  If  a  ship  be  insured  on  a  trading  voy- 
age, the  assured  must  carry  the  trade  on  with 
the  usual  and  reasonable  expedition,         259 

VALUATION. 

1.  The  effect  of  the  valuation  is  only  fix- 
ing conclusively  the  prime  cost,  265 

2.  If  it  be  an  open  policy,  the  prime  cost 
must  be  proved.  In  a  valued  policy  it  is 
agreed  to,  265 

3.  To  argue  there  can  be  no  adjustment 
on  a  valued  policy,  is  directly  contrary  to  the 
terms  of  the  policy.  It  is  expressly  subject 
to  average  loss  if  the  loss  upon  sugars  exceed 
five  per  cent,,  266 

4.  A  valued  policy  is  not  to  be  considered 
as  a  wager  policy,  or  like  "interest  or  no 
interest,"  265 

5.  The  value  should  be  fixed,  so  that  the 
assured  obtains  no  more  than  an  indemni- 
ty, 265 

6.  If  it  be  under-valued,  the  merchant  him- 
self stands  insurer  of  the  surplus,  265 

7.  There  is  no  case  or  principle  of  the 
law  of  insurance,  which  makes  the  estimated 
value  in  the  policy  a  circumstance  on  which 
the  question  of  total  or  average  loss  ought  to 
turn,  "  266 

8.  After  judgment  by  default  on  a  valued 
policy,  the  plaintiff's  title  to  recover  is  con- 
fessed, and  the  value  is  fixed  by  agreement 
in  the  policy,  266 


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